Reid v Delta Electricity
[2009] NSWWCCPD 49
•12 May 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Reid v Delta Electricity [2009] NSWWCCPD 49 | |||||
| APPELLANT: | Terry James Reid | |||||
| RESPONDENT: | Delta Electricity | |||||
| INSURER: | Self Insurer | |||||
| FILE NUMBER: | A1-6246-08 | |||||
| ARBITRATOR: | Ms S Duncombe (Registrar’s Certificate of Determination) | |||||
| DATE OF ARBITRATOR’S DECISION: | 22 January 2009 | |||||
| DATE OF APPEAL DECISION: | 12 May 2009 | |||||
| SUBJECT MATTER OF DECISION: | Sections 4 and 16 of the Workers Compensation Act 1987. | |||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Whitelaw McDonald | ||||
| Respondent: | Bartier Perry | |||||
| ORDERS MADE ON APPEAL: | The orders made by the Registrar in accordance with sections 294 and 371(1) of the Workplace Injury Management and Workers CompensationAct 1998 in Certificate of Determination dated 22 January 2009 are confirmed. No order as to costs. | |||||
BACKGROUND TO THE APPEAL
On 18 February 2009 Terry James Reid (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 22 January 2009.
The Respondent to the appeal is Delta Electricity (‘the Respondent’).
The Appellant, who is 58 years of age, commenced employment as a maintenance worker with the Respondent in September 1986. He remains in that position however since a date in 2004 he has, by reason of back disability, been employed on restricted duties.
The Appellant alleges that his back disability is the result of work related injury.
On 16 April 2007 a claim in respect of lump sum entitlement under the Workers Compensation Act 1987 (‘the 1987 Act’) was made on the Appellant’s behalf by his solicitors. That claim particularised allegations of four separate injuries between September 1994 and January 2001 and claimed section 66 lump sum in respect of an alleged 35% permanent impairment of the back. The notice also included a claim in respect of a 15% permanent loss of efficient use of the Appellant’s right leg at or above the knee, a 10% permanent loss of efficient use of the left leg at or above the knee and lump sum for pain and suffering (section 67). That notice also particularised four separate injuries between April 2002 and August 2005. A claim pursuant to section 66 in respect of an alleged 7% whole person impairment was made.
A dispute arose with respect to those claims and an Application to Resolve a Dispute (‘the ARD’) was filed on behalf of the Appellant with the Commission on 12 August 2008. The ARD particularised nine separate injuries. The last of those injuries was said to have occurred on 16 April 2007. The inclusion of that allegation was made in error and was subsequently corrected by the Appellant. That date was in fact the date of claim relied upon by the Appellant and corresponds with the date of the aforementioned correspondence forwarded to the Respondent by his solicitors. The ninth allegation of injury as particularised remained as an allegation that the Appellant’s employment “has been a substantial contributing factor to the aggravation, acceleration, exacerbation and (sic) deterioration of a disease of the lumbar spine”.
The quantum of the claim as particularised in the ARD included amounts calculated with respect to entitlement under the Table which was contained in section 73 of the 1987 Act prior to those amendments which came into operation on 1 January 2002. The claim in respect of 7% whole person impairment was alleged to have resulted from injuries received since the 2002 amendment to the provisions of section 66 of that Act.
The ARD came before an Arbitrator for conciliation/arbitration on 10 October 2008. Each party was represented by Counsel. The correction of the allegations of injury noted above at [6] was made by Counsel for the Appellant.
The proceedings before the Arbitrator were recorded and there is available a transcript of submissions put on behalf of each party (‘transcript’). At the conclusion of the hearing the Arbitrator reserved her determination.
The dispute before the Arbitrator was one with respect to the degree of permanent impairment allegedly suffered by the Appellant. In the circumstances conduct of the Application required consideration of the relevance of the provisions of Schedule 6.18C, clause 4(1) to the 1987 Act which provides:
“4 (1) In the case of a new claim in respect of an injury received before the commencement of the lump sum compensation amendments, compensation under Division 4 of Part 3 (as in force before the commencement of those amendments) may not be awarded by the Commission if there is an impairment dispute unless the dispute has been assessed by an approved medical specialist under Part 7 of Chapter 7 of the 1998 Act.”
Given the factual dispute concerning the occurrence of injuries which post-dated the amendments to the 1987 Act and the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) which came into operation 1 January 2002, the proceedings before the Arbitrator were governed by the provisions of section 65(3) of the 1987 Act which provides:
“(3) If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.”
The appropriate procedure before the Arbitrator was also governed by the operation of section 321 of the 1998 Act which provides:
“321. Referral of medical dispute for assessment
(1) A medical dispute may be referred for assessment under this Part by a court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute. The Registrar is to give the parties notice of the referral.
(2) The parties to the dispute may agree on the approved medical specialist who is to assess the dispute but if the parties have not agreed within 7 days after the dispute is referred, the Registrar is to choose the approved medical specialist who is to assess the dispute.
(3) The Commission may not refer for assessment under this Part a medical dispute concerning permanent impairment (including hearing loss) of an injured worker.
(4) The Registrar may not refer for assessment under this Part:(a) a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, or
(b) a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).”
Having regard to the aforementioned provisions of the Acts the Arbitrator, properly in my view, proceeded to determine the issue of “liability” which was in issue between the parties prior to her remitting the matter to the Registrar for referral to an approved medical specialist (‘AMS’). The Arbitrator’s determination of such issue was made on 28 October 2008 on which date a Certificate of Determination issued and Reasons for that determination were published. The Certificate of Determination records the Arbitrator’s orders as follows:
| The Commission finds: |
| 1. Mr Terry James Reid suffered an injury in the course of his employment with Delta Electricity, being the aggravation, acceleration, exacerbation or deterioration of a disease condition in the lumbar spine where employment with the Respondent was a contributing factor to that aggravation, acceleration, exacerbation or deterioration: (s.4(b)(ii) of the 1987 Act. (sic) 2. The deemed date of injury is 16 April 2007, the date of claim. The Commission determines: 3. The matter is remitted to the Registrar for referral to an Approved Medical Specialist for an assessment of Whole Person Impairment in respect of the lumbar spine and as a result of injury with a deemed date of injury of 16 April 2007. All evidence in the Application and Reply should be sent to the AMS. 4. The Respondent should pay the Applicant’s costs as agreed or assessed. The matter is certified as complex and each party is entitled to an uplift on costs of 25%.” |
On 30 October 2008 the dispute was referred by the Registrar for assessment by an AMS, Dr Roger Pillemer.
A Medical Assessment Certificate (‘MAC’) was issued by the AMS on 18 December 2008. The MAC certified, inter alia, that the Appellant suffered a 7% whole person impairment as a result of the subject injury.
On 22 January 2009 a Certificate of Determination was issued by the Registrar in accordance with sections 294 and 371(1) of the 1998 Act. The orders recorded were as follows:
“The Commission orders:
1. That the Respondent pay the Applicant, as lump sum compensation under section 66, $10,106.25 in respect of 7% permanent impairment resulting from injury on 16 April 2007 (deemed). [See s66 (2A) of the 1987 Act].
2. That the Respondent pay the Applicant’s costs as agreed or assessed.
Brief statement of reasons
3. This Certificate of Determination is issued in accordance with the Medical Assessment Certificate issued under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998.”
THE DECISION UNDER REVIEW
The Appellant’s challenge in this appeal is to the determination making provision for the orders made on 22 January 2009 and noted above at paragraph [16]. That decision is founded upon the reasons expressed by the Arbitrator for her determination dated 28 October 2008, which formed the basis upon which the dispute was referred to the AMS. The Appellant correctly notes that, having regard to the provisions of section 352(8) of the 1998 Act, the Arbitrator’s decision was of an “interlocutory nature” within the meaning of that subsection and could not be the subject of an appeal. Given that the determination challenged on this appeal is founded upon those reasons expressed by the Arbitrator, any review made upon the Appellant’s application in this appeal would necessarily involve an examination of those reasons and the interlocutory order made which led to the referral to the AMS for assessment.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred:
(i)in finding that the Appellant’s injuries consisted of the aggravation, acceleration, exacerbation or deterioration of a disease where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration of that disease in terms of section 4(b) of the 1987 Act;
(ii)in determining that a finding of a pre-existing disease process required that subsequent incidents causing injury must be seen as aggravations, accelerations, exacerbations or deteriorations of the disease process;
(iii)in proceeding upon the basis that “the fact that the incidents did not ‘cause’ the degenerative process, the incidents could not then cause injury within the meaning of section 4(a) of the 1987 Act;
(iv)in reaching a decision which was against the weight of the medical and other evidence, and
(v)in determining the deemed date of injury as being 16 April 2007.
The summary of the issues as set out above is taken from the Appellant’s written submissions in support of this appeal ([18]-[22]).
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
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 Registrar’s decision in compliance with section 352(4) of the 1998 Act.
The amount of compensation at issue on the appeal exceeds the thresholds provided by section 352(2) of the 1998 Act, which must be met before a grant of leave to appeal is made by the Commission.
The requirements of section 352(2) and (4) of the 1998 Act having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
EVIDENCE
The evidence considered by the Arbitrator before the issue of her Certificate of Determination dated 28 October 2008 was described at paragraph [9] of her Reasons as including the Application to Resolve a Dispute and attached documents as well as the Reply and attached documents. There was no oral evidence adduced at the hearing.
The evidentiary material before the Registrar at the time of the issue of her Certificate of Determination dated 22 January 2009 included the material that was before the Arbitrator noted above as well as the Referral for Assessment dated 30 October 2008 and the MAC issued by Dr Pillemer as certified by the Registrar’s delegate dated 18 December 2008.
A statement by the Appellant made in December 2007 includes a description of ten distinct occasions on which he experienced back pain in the course of his employment. Two of those instances, namely, 5 June 2001 and 17 September 2002 are not included in the allegations of injury, which appear in the ARD.
The Appellant states that he first sought medical treatment from his GP, Dr Fretze, in early 1990. It must be said that it is unclear from the statement as to whether any treatment in respect of back disability was sought prior to 1994. He states:
“I was initially treated for lower back strain and had time off work. Prior to this I had never had any problems with my back.”
The Appellant in his statement makes reference to treatment received and his referral to Professor Ghabrial. It is stated that he has performed restricted duties since August 2005 and those duties are described in the statement. As at the date of the statement the Appellant was having no ongoing treatment in respect of any back disability.
There were three short reports of Dr Fretze, dated 12 January 2006, 13 October 2007 and 7 July 2008. The first of those reports refers to a “flare” of pain whilst on holidays requiring physiotherapy which Dr Fretze related to the Appellant’s work related injury. The report of 13 October 2007 states that the Appellant had consulted him “on most of the occasions of his injuries starting with the first one in September 1994”. Dr Fretze had earlier noted that the Appellant had been his patient since “the early 1990s”. Of significance Dr Fretze’s report notes that he had enclosed “all recent clinical notes and investigations which may be relevant as you have requested.” There are no such clinical notes in evidence before the Commission. This matter is addressed below.
Dr Fretze expressed the view in October 2007 that the Appellant suffered from significant disc disease and facet joint degeneration. It was that doctor’s view that the Appellant’s multiple injuries since 1994 while working with Delta Electricity had aggravated the degenerative process and probably accelerated it. It was Dr Fretze’s view that the Appellant’s employment was a substantial contributing factor to his present level of functioning. Dr Fretze proceeded to state that:
“ I feel his injuries had a significant accelerating affect [sic] on his underlying degenerative condition and in relation to the disc prolapse at L5/S1 could have had a direct causal effect.”
The report of Dr Fretze dated July 2008 comprised the following two paragraphs:
“1. I agree with Professor Ghabriel that Terry Reid most likely sustained a a [sic] disc injury on 9 September 1994 to the L5 S1 area, and that the injury has likely been aggravated by later injuries.
2. I also am of the opinion that the injury on 9 September 1994 was the major causative injury for the development of the workers disc injury and subsequent spinal degeneration.”
There were three reports from Dr Y A E Ghabrial, orthopaedic and spinal surgeon, two bearing date 24 January 2007 and one dated 17 December 2007. Professor Ghabrial noted that the Appellant had been first seen on 14 September 2006 and that his relevant history was that of an injury to his lower back some time in 1994/1995 and that the Appellant had been experiencing lower back pain which occurred at work when lifting since that time. Professor Ghabrial recorded a history of “aggravations on multiple occasions at work over the years”. Professor Ghabrial noted his advice to the Appellant that “his problem was most likely related to his injuries in the mid 1990s”. The opinion was expressed that the Appellant “sustained multiple injuries to his lower back during the course of his employment…”. Professor Ghabrial said that “clinical assessment and investigations suggested left L5/S1 disc prolapse with some protrusion and bulging at the L4/5 and L3/4 segments”. The opinion was expressed that “… there was no pre-existing conditions or disease”.
Professor Ghabrial in his second report of January 2007 contained assessments of impairment, permanent loss and whole person impairment. Those assessments in respect of the relevant state of affairs prior to 1 January 2002 were:
“Back 35% (less 3.5% given presences of degenerative changes)
Right lower limb at or above the knee 15% (reduced to 13.5% after deduction with respect to degenerative changes)
Left lower limb at or above the knee 10% (reduced to 9% after 1% allowance in respect to degenerative changes).”
Professor Ghabrial’s assessed whole person impairment regarding the lumbar spine “as a result of the injuries following the 1st of January 2002” as being 7%, being “1% related to the degenerative changes and 6% the result of the work related injuries”.
Professor Ghabrial’s report of 17 December 2007 noted the content of a report of Professor Michael Ryan concerning the Appellant. Professor Ghabrial proceeded to state that there was no doubt that the Appellant has degenerative changes in the lumbar spine and he expresses the belief that the degenerative changes are the result of the injuries from the original injury of 9 September 1994 “with repeated injuries”. The view was then expressed that there should be a deduction of 1/10th of all the assessed impairments regarding the back and lower limbs “as the result of degenerative changes of the lumbar spine”.
There are two reports in evidence of Professor Michael D Ryan, clinical associate professor of surgery, orthopaedics and spinal surgery, the first dated 16 May 2007 and another dated 4 July 2007. Professor Ryan made reference to the Appellant’s history and radiological studies that were available to him. Professor Ryan’s diagnosis was that “Mr Reid suffers from degenerative disc disease and facet joint degeneration. His condition is particularly severe at the lumbo-sacral junction.” The view was expressed that, having regard to the “Table of Maims” the Appellant has a 30% permanent impairment of the back and a 10% impairment of the right leg at or above the knee and a 10% permanent impairment of the left leg at or above the knee.
Professor Ryan proceeded to state in his report that an assessment under the “Table of Maims” cannot be converted to a whole person impairment. Professor Ryan proceeded to express the view that, based upon his examination of the Appellant, the Appellant’s whole person impairment corresponded to a 5% whole person impairment to which is added a 2% whole person impairment for interference with activities of daily living. The view was expressed that 1/10th of the Appellant’s permanent impairment is due to a genetic or constitutional factor.
Professor Ryan in his report proceeded to address the question of “attribution” having regard to the multiplicity of “injuries”, as follows:
“Based on the same examination however, Mr Reid’s whole person impairment corresponds to DRE Lumbar Category II, which corresponds to a 5% whole person impairment, to which is added 2% whole person impairment for interference with activities of daily living.
I consider that one tenth of Mr Reid’s permanent impairment is due to genetic or constitutional factor.
Mr Reid suffered four injuries before 1 January 2002. On the 9 September 1994, the 30 January 1997, on the 5 April 2002, the 27 September 2002, the 19 November 2003 and the 29 August 2005. It is reasonable to attribute 25% of Mr Reid’s pre-2002 impairments to each of the events, which occurred before the 1 January 2002.
Similarly, I attribute 25% of his whole person impairment to each of the four events that occurred after the 1 January 2002.
None of the above apportions impairments before and after the change in the regime for assessment. It is reasonable to conclude that 50% of the above assessment of Table of Maims (that is 15% permanent impairment of the back and 5% permanent loss of efficient use of the right leg at or above the knee, and 5% permanent loss of efficient use of the left leg at or above the knee) was the total impairment attributable to pre-2002 and 50% of the whole person impairment is the total amount attributable to after 2002. This results in a whole person impairment of 3.5%, which is rounded up to 4%.”
A number of reports relating to radiological investigations of the Appellant were attached to the ARD. Details of relevant content of those reports appears below.
A report of Dr M Jonathan King dated 16 September 2005 addressed to the Respondent included the following expression of opinion:
“1.According to the history, Mr Reid’s employment most likely contributed to his lower back symptoms. However, it is not clear whether Mr Reid’s lumbar spine degenerative changes are caused by his employment. The degenerative changes are most likely mainly a result of genetic and constitutional factors rather than caused by his employment. It is difficult to quantify the amounts that each factor contributes to lumbar disc degeneration but it appears that occupation contributes only a small percentage to lumbar disc degeneration.”
Attached to the ARD were a number of documents, not all of which are relevant to the issues raised on this appeal. Included among those documents were the Respondent’s records relating to the alleged 1994 incident and other reported incidents and injuries. Where relevant these are referred to below.
Documents attached to the Respondent’s Reply included a number of incident reports and claims for compensation as well as medical certificates and a document which appears to be a summary of “Injury History” relating to the Appellant noted on the Respondent’s stationery. Relevant detail of these documents is addressed hereunder.
Three reports of Dr David Crocker, consultant occupational physician, prepared in 2004 are attached to the Reply. The last of those reports dated 3 June 2004 is headed “Re: Permanent Medical Restriction”. It is noted in that report that the Appellant should be restricted to “nil lifting weights of greater than 15kg without assistance; to avoid extended repetitive lifting and bending”.
The Respondent further relied upon evidence which had been annexed to the Appellant’s ARD including numerous medical certificates, reports from Professor Ghabrial, King, and Fretze. Two reports from Professor Ryan relied upon by the Appellant were also annexed to the Respondent’s reply.
A number of other documents not directly relevant to the issues raised on this appeal were also annexed to the Reply.
SUBMISSIONS
Submissions put before the Arbitrator
The manner in which the matter was conducted before the Arbitrator involved competing arguments as to the proper characterisation of “injury”. It was the Appellant’s argument that each of the injuries alleged appearing in Part 4 of the ARD should be found by the Arbitrator to constitute injuries “simplicter” that is as being each an injury within the definition contained in section 4(a) of the 1987 Act. It was argued that the Commission was dealing with a series of “personal injuries” within the meaning of that subsection. It was specifically argued that, on the facts, the history of injury would not lead to a finding that the Appellant was suffering a disease that was contracted in the course of the Appellant’s employment to which such employment was a contributing factor (section 4(b)(i)) nor a finding that the injuries suffered were an aggravation, acceleration, exacerbation or deterioration of a disease within the meaning of section 4(b)(ii). It was stated by Counsel (transcript, page 17):
“So we have eight separate incidents, each specific frank injury simpliciter, which have caused injury to this man's back. The fact that the pathological consequences were a worsening of the degenerative process does not bring it within the disease provisions of the legislation…”
It was subsequently argued on behalf of the Appellant, having regard to the necessity to remit the matter to the Registrar for referral to an AMS for assessment, that the Arbitrator should make findings with respect to the occurrence of separate injuries and that any assessment by an AMS required attention to entitlement as prescribed by the Acts, both before and after the amendments relating to lump sum entitlement which came into effect on 1 January 2002. It was stated by Counsel (transcript, page 24):
“… you would find injury on the various dates, you would find that the injuries that occurred prior to 1 January 2002 resulted in an impairment of the back and loss of the use [inaudible], and that the injuries after that date resulted in a whole person impairment in relation to the back and the legs…”
During the course of exchanges between the Appellant’s Counsel and the Arbitrator a number of alternative views were addressed. Following discussion it was stated by Counsel (transcript, page 25):
“… it should be dealt with on the basis that what you then have is effectively two types of impairment, one resulting from the injuries occurring prior to 1 January and one resulting from the injuries occurring after 1 January.”
The Respondent argued before the Arbitrator that there should be a finding that the history of injury as proven falls within the disease provisions contained in section 4 of the 1987 Act. It was argued, in particular, that the Commission was dealing with evidence of the aggravation, acceleration, exacerbation or deterioration of a disease where the employment was a contributing factor to such aggravation, acceleration, exacerbation or deterioration within the meaning of section 4(b)(ii). It was stated by Counsel for the Respondent during the course of submissions (transcript, page 13):
“The medical evidence is that there is a disease process in existence. The medical evidence really from all the doctors is that there has been an acceleration and aggravation of that underlying disease process caused by the injuries and by the work performed. That brings into play section 16…”
Counsel for the Respondent proceeded to argue that the evidence established that there was a disease process, which had been aggravated and accelerated giving rise to one impairment. It was implicit in those submissions that such a finding should be made prior to remitter to the Registrar for referral to an AMS. The AMS would then assess that singular impairment in accordance with the terms of section 66 as it stands since the 2002 amendments.
The Appellant’s arguments that the injury of September 1994 was “the genesis of the condition” was expressly dealt with in the course of submissions by Counsel. It was put in argument (transcript, page 14):
“… it’s my submission that the evidence in this matter falls short of the doctors being able to satisfy you that that injury should be so regarded, there being no evidence of treatment, prime loss or investigation at that time, nor, indeed, until 10 years later, and it's a fairly transparent embellishment of the history to endeavour to create that view of that injury being the genesis where there’s clear evidence of disease, as I’ve said, and clear evidence of aggravation and acceleration.”
An exchange occurred as recorded in the transcript, between the Arbitrator and Counsel concerning the “deemed” date of injury should there be a finding of “disease” as argued on behalf of the Respondent. It was noted by Counsel for the Respondent that, dependent upon the Arbitrator’s determination of matters of fact, the loss should be assessed as at the date of the last injury alleged, namely, 29 August 2005 or alternatively the loss should be determined as at the date of claim which had been particularised by the Appellant as being 16 April 2007.
Submissions on this appeal
The Appellant in his written submissions notes that the Arbitrator’s determination made on 28 October 2008 was of an interlocutory nature and as such was not one subject to an appeal. It is further stated that the determination dated 22 January 2009 “incorporates the determination of the Arbitrator dated 28 October 2008”. It is implicit that the Appellant, in challenging the determination made in January 2009 does so upon the basis of a challenge to the findings made by the Arbitrator in the earlier determination. Those findings, being challenged by the Appellant, form the basis of the ultimate referral to the AMS by the Registrar. The relief sought on this appeal is that stated at paragraphs [42] and [43] of the Appellant’s written submissions.
The errors suggested by the Appellant to be found in the determination of the Arbitrator are stated between paragraphs [18] and [22] of submissions. Those matters have been summarised at [18] above.
Reference is made in submissions to the Appellant’s statement, which was in evidence. It was argued that the Appellant’s evidence as to the occurrence of a number of incidents causing injury to his back were not the subject of cross-examination. It is argued that each incident “has the flavour of a ‘frank incident’ most comfortably falling within the definition of injury as it appears in section 4(a) Workers Compensation Act 1987.” Reference is made to the medical evidence, in particular to those views expressed concerning the significance of the first injury, which occurred in 1994.
It is further argued, upon the basis of the Appellant’s own evidence, that of Professor Ghabrial and Professor Ryan, that “… the proper characterisation of the injury suffered by Mr Reid is that he has suffered a series of personal injuries”. Reference is made to the decision of the Court of Appeal in Rail Services Australia v Dimovski and anor [2004] NSWCA 267 (‘Dimovski’). Reliance was also placed upon the decision of Neilson CCJ (as he then was) in Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422 (‘Lyons’).
It is argued that the Arbitrator has “ignored” the assessments of Professor Ghabrial and Professor Ryan and that she has preferred her “own medical view of the significance of various ‘frank incidents’”. It is put that the Arbitrator has fallen into error in determining that the injury was in the nature of an aggravation of a disease process and that such error was similar to that identified by Neilson CCJ in Lyons. Reliance is also placed upon the opinion of Dr Fretze. It is put that Dr Fretze expressed the view that the Appellant sustained an injury to his lumbo-sacral disc in the incident occurring on 9 September 1994.
It is put on behalf of the Appellant that the Arbitrator erred in “relying upon section 16 Workers Compensation Act 1987 in determining a deemed date of injury of 16 April 2007”.
It is argued that a loss was suffered prior to 1 January 2002 and that subsequently the Appellant “suffered a further loss”. Reference is made to the content of Schedule 6, Part 18C, Clause 3(1) to the 1998 Act. Having regard to the Appellant argument concerning the appropriate factual findings it is put that the operation of that clause of the schedule would require assessment of any impairment/loss suffered prior to the commencement of the subject amendments and assessment of whole person impairment suffered as a result of injury proven to have occurred after that date.
The Respondent in its written submissions annexed to its Opposition to this appeal seeks to support the findings of the Arbitrator concerning the nature of the injury received by the Appellant up until the date of claim in April 2007. The principal argument advanced is that which is expressed in paragraph [6b] of submissions:
“The Appellant’s degenerative lumbar spine disc disease and facet joint arthritis is genetic or constitutional in origin and has been permanently and materially progressed by a combination of the incidents relied upon without any single incident in itself being responsible for the ultimate state of the Appellant’s lumbar spine impairment.”
It is argued on behalf of the Respondent that the injury received was one within the meaning of section 4(b)(ii) of the 1987 Act. It is further argued that the relevant date of injury is to be fixed either by reference to section 15 or section 16 of the 1987 Act. Reference is made to the decision in Stone v Stannard Brother Launch Services Pty Ltd [2004] NSWCA 277 (18 August 2004, unreported) in support of the Arbitrator’s conclusion that the deemed date of injury is the date of the “impairment claimed” being 16 April 2007.
The Respondent argues that an examination of the evidence contained in contemporaneous records of each “incident” demonstrates that complaint was made concerning “lower back pain or muscular strains and left sciatica”. Having regard to that evidence it is put that “not all of the incidents pleaded necessarily amount to ‘frank’ injury as asserted by the Appellant”.
The Respondent proceeds to challenge the Appellant’s argument that “… he has suffered two separate losses for impairment purposes, one which was completed some time prior to 1 January 2002 and a further loss after that date”. It is argued that such a proposition is not supported by the weight of evidence and it is argued that the authorities, including Richardson v Warrie Glazing Pty Ltd [2006] NSWWCCPD 159 is against such a proposition.
The Respondent (at page 11 of transcript) accepts the allegation that the Appellant’s employment “has been a substantial contributing factor to the aggravation, acceleration exacerbation and (sic) deterioration of a disease of gradual process, being degenerative disease of the spine…”
DISCUSSION AND FINDINGS
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5) An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the afore mentioned subsection has most recently been considered by the NSW Court of Appeal in Sapina v Coles Myer Limited [2009] NSWCA 71. The Court was there considering an appeal from a Deputy President of this Commission who had heard an appeal from an Arbitrator in the course of which the Deputy President approached his task by examining whether or not error had been displayed in the reasoning of the Arbitrator. It was held (Allsop P and Hoeben J, Beasley JA agreeing) that such was the incorrect test for the task of review of the decision under the 1998 Act.
In the joint judgment of Allsop P and Hoeben J is to be found an extensive and detailed examination of relevant authority concerning the proper construction of the term “review” ([17]-[59]). Following discussion of the authorities it was stated (at [57] and [58]):
“57.Whilst the new regime of dealing with workers’ compensation claims must be examined in its own statutory context, it is important to appreciate that the legislature has used a phrase that had in the prior regime, a tolerably settled meaning. Section 36 of the Compensation Court Act used the phrase “review the decision”. Subsections s 352 (1) and (5) of the WIM Act make clear that the “appeal” is to be by way of review of the decision. The notion of “review of a decision” had been clearly held in the context of the former legislation and the WIM Act to be wider that (sic) an appeal strictly so-called and encompassing a reconsideration beyond correction of error. The decision under appeal is not to be ignored, but the task of the Presidential member is, as Spigelman CJ said in Chemler, ‘to decide whether the original decision is wrong [that is to] decide what is the true and correct view.’ This requires the Presidential member to decide for himself or herself these matters. That does not mean that there must be a de novo hearing in each case. Cases such as Watson, Boston Clothing, Litynski and AGL v Samuels made plain that this was not so under s 36 and the terms of ss 3, 352 (7) and 354 make clear that no such broad ranging factual enquiry afresh is necessarily required. The terms of the WIM Act, ss 3 and 354 and the width of the powers in s 352 (7) make clear that the Presidential member has a wide choice available as to how he or she undertakes the task of deciding for himself or herself what is the true and correct decision. As Allsop P said in Cook v Midpart, error (or lack of it) by the Arbitrator will or may be relevant to the task of the Presidential member, but it does not define the task. There is, however, an important difference in the nature of the tasks of (a) coming to the view that an Arbitrator’s view was reasonable and (b) deciding for oneself that the view of the Arbitrator is the true and correct one. In a field where evaluation of injury and evidence of incapacity can lead to different views, both or all which could be reasonably held, it is important that the parties have available to them the skill and judgment of the Presidential member reaching his or her own view on the questions involved in the decision.
58.Just as error of the Arbitrator may be relevant, so might be the advantages of the Arbitrator in seeing witnesses. Nothing we have said, and none of the cases to which we have referred, necessarily requires the Presidential member to rehear the case or to recall all the witnesses. The approach of the Presidential member as to how he or she goes about reaching his or her own decision will be a matter for him or her within the confines and freedoms of s 354.”
It should be noted at the outset that the determination which is the subject of this review on appeal is that made on 22 January 2009. As observed above that determination is founded upon the binding assessment made by the AMS in the MAC date 18 December 2008. The matters certified in that MAC by Dr Pillemer concern those matters raised in the referral to him prepared by the Registrar following remitter by the Arbitrator. It follows as noted in [17] above that a review of the January 2009 determination requires an examination of the correctness or otherwise of the Arbitrator’s findings made in the course of her Reasons at the time her determination dated 28 October 2008 was made.
The case which was pressed before the Arbitrator and which, ultimately, was not made out is conveniently summarised by the Arbitrator at [26] of Reasons:
“26. Fundamentally, the Applicant submitted that he had had a series of injurious incidents which caused a personal injury, not an aggravation of a disease process. The 1994 incident was the genesis of the injuries. The loss was complete some time prior to 2002 and should be assessed as one impairment under the Table of Disabilities. After 2002, there was a continuation of injurious events, leading to the loss being complete as at 2005. This should be assessed according to AMA 5.”
The general thrust of the Respondent’s argument concerning the nature of “injury” is conveniently summarised by the Arbitrator at [37] of Reasons:
“The Respondent submitted that the evidence is clear that there is one injury, which is the disease process, and that the incidents at work have aggravated that disease process. This results in section 16 deeming the correct date of injury, in this case either 29 August 2005 or 16 April 2007 (the date of claim). The loss is complete at the time of the last injury. If the Applicant wanted to rely on the assertion that the injury in 1994 was the genesis of the condition, the evidence falls far short in establishing that (according to Mr Odling). There was no time lost in 1994, there were no investigations ordered until approximately 10 years later and there was no report of anything significant at that stage.”
It is convenient to examine the Arbitrator’s Reasons for the purpose of identifying those factual conclusions which were reached concerning the dispute as summarised by her. It is proposed to then deal with those matters of complaint raised by the Appellant on this appeal.
The Arbitrator at [42] of her Reasons concisely summarised the evidence, which was before the Commission. Following that summary a number of findings of fact founded upon such evidence were made and expressed by the Arbitrator. Those findings may be summarised as follows:
(i)“… that Mr Reid suffers from a disease of gradual process, namely degenerative disc disease and facet joint degeneration.” (Reasons, [43]);
(ii)“I’m not persuaded that the genesis of this disease was the incident in 1994.” (Reasons, [44]), and
(iii)“… that the pathology that has arisen from the multiple incidents at work is the same and that one impairment results from those incidents.” (Reasons, [46]).
The Appellant’s first matter of complaint is that the Arbitrator committed error in finding that the Appellant’s injury consisted of the aggravation, acceleration, exacerbation or deterioration of a disease where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration of that disease in terms of section 4(b) of the 1987 Act. This finding, is to be found at Reasons [48].
The Appellant correctly states (submissions paragraph [28]) that “In order to properly assess the Appellant’s entitlement to compensation it is necessary to look to ss4 and 9 of the 1987 Act”. As is pointed out by the Appellant in submissions, sections 15 and 16 of the 1987 Act do not establish any entitlement to compensation but, rather, deem a date of injury in “disease” cases.
It is put on behalf of the Appellant (submissions paragraph [29]) “That the proper characterisation of the injuries suffered by Mr Reid was that he had suffered a series of personal injuries”. That proposition was put “notwithstanding that the ‘personal injuries’ suffered by Mr Reid have acted upon a degenerative process”. Reference is made to the decision of the Court of Appeal in Dimovski.
An analysis of the Arbitrator’s reasoning concerning the “characterisation” of the subject injury reveals that some reference has been made to the wordage of section 4(a) and section 4(b) where it is stated (at [48] of Reasons):
“… Mr Reid suffered a personal injury, being an aggravation, acceleration, exacerbation or deterioration of a disease condition…” (my emphasis).
Notwithstanding the use of the term “personal injury” the Arbitrator subsequently makes express reference to the provisions of section 4(b)(ii) of the 1987 Act. I conclude that the Arbitrator’s finding was that the injury proven was one within the meaning of injury as defined in that sub-subsection.
The Appellant’s reliance upon the decision of Dimovski includes reliance upon the resolution of conflict attained by that decision between the Court’s decisions in Colliar v Bulley (2000) 19 NSWCCR 302 and Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606 (‘Mecha’). When dealing with the conflict between those last mentioned authorities Hodgson JA stated at [68]:
“In my opinion, the decision in Mecha is to be preferred. Section 16 applies only if the injury ‘consists in’ the aggravation etc of a disease. If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstance that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury ‘consists in’ the aggravation of a disease…”
It may be seen that the Appellant in the present matter may gain comfort from that which was found in the matter of Dimovski and by the resolution of the earlier conflict in authority if it can be established on this appeal that the Arbitrator, on the evidence, should properly have concluded that the subject injury was personal injury within the meaning of section 4(a) of the 1987 Act rather than, as found, aggravation of a disease in terms of section 4(b)(ii). It appears to be the Appellant’s argument that each incident noted at Part 4 of the ARD were “frank incidents” and each amounts to personal injury, sometimes referred to as injury simpliciter in various authorities (section 4(a) of the 1987 Act).
The Arbitrator has found that the Appellant “suffers from a disease of gradual process, namely degenerative disc disease and facet joint degeneration”. The Arbitrator’s adoption of the term “gradual process” does not import any reference to the terms of section 15 of the 1987 Act but merely characterises the disease as one that is progressive. That finding of fact was, in my view, inevitable having regard to the medical evidence before the Commission. There are three radiological studies of the Appellant’s spine in evidence. The first is a plain x-ray study dated January 2004, the second is a CT lumbar spine study, again dated January 2004 and an MRI lumbosacral spine study dated 29 September 2005. There is no earlier radiological study in evidence. The January 2004 CT lumbar spine study noted the following matters and conclusion:
“History: Recurrent back pain and left sciatica.
Findings: L3/4: Mild disc bulging is present. No nerve root compression. The facet joints were normal.
L4/5: There is at least 25% loss of disc height associated with disc bulging. No definite nerve root compression. Facet degenerative changes are present bilaterally more pronounced on the right side.
L5/S1: Severe degenerative facet disease is present bilaterally with degenerative spondylolisthesis of 2mm. There is a broad based posterolateral disc herniation present on the left side which contracts the ventral thecal sac but does not extend into the lateral recess. The left L5 nerve root exists without compression.
CONCLUSION
Degenerative disc bulging and narrowing at L4/5 with mild facet arthopathy.
Degenerative spondylolisthesis L5/S1 secondary to severe facet arthropathy. Broad based posterolateral disc herniation L5/S1 with some mass effect into the thecal sac through no definite L5 nerve root compression.”
The Appellant’s argument at the hearing that the disease process suffered by him had its genesis or was initiated by “the incident in 1994” was expressly rejected by the Arbitrator (Reasons, [44]). The Arbitrator stated her reasons for such conclusion at that last mentioned paragraph of Reasons. I respectfully agree with the Arbitrator’s approach to the evaluation of the available evidence and her conclusion. It is clear that the Arbitrator has relied upon the content of the incident report, which forms part of the Appellant’s evidence, which was compiled by the Respondent in relation to the event occurring on 9 September 1994. That document is the only contemporaneous material available concerning the events of the day. It is recorded that the Appellant “felt lower back pain after bending to [illegible- appears to be ‘lift’]”. As noted by the Arbitrator no time was lost, the incident was described as a minor injury, the Appellant had little in the way of recall of the circumstances on later occasions when questioned by medical practitioners and the Appellant continued working without apparent incapacity for a further three years before reporting another incident involving back pain.
It is of particular significance that Dr Fretze states in his report dated 13 October 2007 that he “… enclosed all relevant clinical notes and investigations which may be relevant…” As noted above such records are not in evidence. The absence of that material is not explained. In the absence of such explanation it is open to inference that the content of any such records would not have advanced the Appellant’s case. The onus is upon the Appellant. I conclude that no error on the part of the Arbitrator has been demonstrated concerning her finding as to the suggested “causal” role of the 1994 incident. The Arbitrator’s conclusion, as I have stated, is not only available on the evidence but one with which I respectfully agree.
The Appellant further argues that the Arbitrator erred “in determining that a finding of pre-existing disease process required that subsequent incidents causing injury must be seen as aggravations, accelerations, exacerbations or deteriorations of the disease process”. This appears to be an attack upon the finding by the Arbitrator which is found at [47] of Reasons:
“… The evidence is insufficient to satisfy me that the work actually caused the disease process. In finding this, I note that there is no actual evidence of any need for medical treatment prior to 1994 in relation to the back. However, the Applicant’s own specialist has deducted 10% for pre-existing conditions and in the absence of any strong evidence indicated an actual cause at work, I am satisfied that the Applicant has suffered an aggravation of the degenerative condition in his spine as a result of the multiple incidents at work.”
I conclude, following a reading of the Arbitrator’s Reasons, that there has been no determination by her, as suggested by the Appellant, that given her finding as to the existence of the pre-existing disease process subsequent incidents must be seen as aggravations, accelerations, exacerbations or deteriorations of that disease. The Arbitrator has addressed the evidence and, in reliance upon, in particular, the original view expressed by Dr Fretze as expressed in his report of 13 October 2007, concluded that the Appellant “… has suffered an aggravation of the degenerative condition in his spine as a result of the multiple incidents at work”. There can be little doubt that the Arbitrator relied upon that portion of Dr Fretze’s evidence where the doctor stated:
“I agree with both the orthopaedic surgeons in the diagnosis: that Mr Reid suffers from significant degenerative disc disease and facet joint degeneration. (L5/S1 is the worst affected area). His multiple injuries since 1994 while working with Delta Electricity have aggravated the degenerative process and probably accelerated it. Therefore I believe that his employment is a substantial contributing factor to his present level of functioning.”
The adoption by Dr Fretze of the view expressed by Professor Ghabrial concerning the occurrence of a disc injury on 9 September 1994 needs to be evaluated, in my view, in light of all of the evidence. That task has been performed by the Arbitrator and the opinion of those practitioners on that particular point has been rejected. The fact that neither practitioner expresses any reason for their conclusion as to the “causal” role of the 1994 injury with respect to the lumbo-sacral disc raises a further question as to what weight should be ascribed to such evidence. I again confirm my agreement with the Arbitrator’s conclusions.
It is suggested by the Appellant that the Arbitrator erred in proceeding upon the basis that, there being no causal nexus between the incidents alleged and the “degenerative process” such incidents could not “then cause injury within the meaning of section 4(a) of the 1987 Act”. It is correct that the Arbitrator concluded that the incident alleged caused “aggravation, acceleration, exacerbation or deterioration” rather than being events that meet the description in paragraph (a) of the definition of injury in section 4.
In the present case the Arbitrator concluded that each of the incidents alleged constituted aggravation. That conclusion is plainly supported by the evidence. The various incident report forms, claims for compensation and other contemporaneous records characterise those incidents recorded invariably as being occasions when painful back symptoms (and occasional leg symptoms) manifested during conduct by the Appellant of his day to day duties. That is, there was no traumatic event from which it may be inferred that an identifiable pathological change of any consequence had occurred, but rather, that by reason of the exertion, the underlying condition of the Appellant’s spine had been aggravated, accelerated, exacerbated or deteriorated giving rise to those symptoms. I am of the opinion that the Arbitrator’s conclusions of fact as to the character of those incidents was open to her on the evidence and her conclusions are ones with which I respectfully agree. I note that nowhere in the Arbitrator’s Reasons is there any suggestion that such incidents could not constitute injury simpliciter. Simply stated the Arbitrator concluded that those incidents had not been proven to constitute injury simpliciter, that is injury within the terms of section 4(a).
The Appellant argues that the Arbitrator’s decision was against the weight of the medical and other evidence. I have earlier expressed my views as to the correctness of the Arbitrator’s conclusions reached with respect to the nature of the injuries alleged and the application of the provisions of the 1987 Act. Not only do I conclude that the Arbitrator’s evaluation of the evidence as expressed was correct but I note that, to an extent, there were deficiencies in the evidence as presented by the Appellant having regard to the nature of the relief sought. I note in particular the evidence of Professor Ryan appearing at [40] which contrasts with that methodology of assessment adopted by Professor Ghabrial.
The Appellant has placed a significant reliance upon the opinion of Professor Ghabrial with respect to quantification of lump sum entitlement as afforded by the different schemes which appeared in the Act prior to January 2002 and subsequently. Professor Ghabrial first examined the Appellant in 2006 and first expressed an opinion as to such issues in his report of 24 January 2007. The weight of that evidence needs, in my view, to be evaluated having regard to the obvious fact that the pre-January 2002 quantification was made years after the legislative amendment of the scheme. The absence of any contemporaneous evaluation constitutes a significant deficiency in the Appellant’s case concerning both the identification of the character of any “injury” and more particularly, the consequences of injuries in terms of impairment/loss of use. The Appellant’s argument that the Arbitrator’s decision was against the weight of the medical and other evidence must be rejected.
The Appellant in submissions suggests error on the part of the Arbitrator “in determining the deemed date of injury as being 16 April 2007”. The relevant finding appears at [49] of Reasons:
“Section 16 of the 1987 Act provides that the date of injury for such an injury is deemed to be either the date of incapacity or the date of making the claim. Mr Reid is still employed by the Respondent, although on light duties. The date of the claim is the most appropriate date for the date of injury under these circumstances and in this case is 16 April 2007.”
The Appellant’s argument concerning the suggested error is founded upon the Arbitrator’s reliance upon section 16 of the 1987 Act in determining a deemed date of injury (submission, [37]). The argument is again founded upon the suggestion that there should be a finding that the Appellant received a series of “frank injuries”. It is put (submissions, [38]) that “…his loss was completed sometime prior to 1 January 2002. The Appellant subsequently suffered a further loss.” The Appellant’s argument proceeds to cite the provisions of clause 3(1) of Part 18C of Schedule 6 to the 1987 Act.
I have earlier expressed my agreement with the Arbitrator’s conclusion that the Commission is not here dealing with a series of frank injuries nor with any singular or discrete personal injury within the meaning of section 4(a) of the 1987 Act.
The Arbitrator’s finding that the subject injury was one of aggravation, acceleration, exacerbation or deterioration within the meaning of section 4(b)(ii) required, as recognised by the Arbitrator at [49] of Reasons, reference to be made to section 16 of the 1987 Act for the purpose of determining the date of injury.
That section, relevantly, provides:
“16 Aggravation etc of diseases-employer liable, date of injury etc
(cf former ss 7 (4A), (5), 16 (1A))
(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:
(a) the injury shall, for the purposes of this Act, be deemed to have happened:
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury-at the time the worker makes a claim for compensation with respect to the injury, and…”
A claim in respect of the compensation which is the subject of the dispute was made by the Appellant on 16 April 2007. It was that date, no doubt having regard to the provisions of section 16(1)(ii) of the 1987 Act that was found to be the deemed date of injury. As no death had occurred nor any relevant incapacity, I conclude that the Arbitrator’s finding with respect to the deemed date of injury is correct. Whilst there was evidence of a change of duties by reason of disability which occurred in 2004 (stated by the Appellant to be 2005) and a suggestion that there may have been some short periods of absence from employment by reason of exacerbations of symptoms related to the underlying disease process such matters, in my opinion, are of no relevance given that, again as noted by the Arbitrator, the Appellant remained in employment with the Respondent (see Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277 (18 August 2004, unreported)). The Appellant’s submissions concerning suggested error with respect to the finding of deemed date of injury must be rejected.
It may be seen that the matters raised challenging the findings of the Arbitrator which formed the basis of referral to the AMS and ultimately to the terms of assessment of the AMS and the determination contained in the COD challenged on this appeal have been rejected. In the circumstances the appeal fails.
DECISION
The orders made by the Registrar in accordance with sections 294 and 371(1) of the 1998 Act in the Certificate of Determination dated 22 January 2009 are confirmed.
COSTS
No order as to costs
Kevin O’Grady
Deputy President
12 May 2009
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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