Richardson v Warrie Grazing Pty Ltd
[2006] NSWWCCPD 159
•21 July 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Richardson v Warrie Grazing Pty Ltd [2006] NSWWCCPD 159
APPELLANT: Paul Anthony Richardson
RESPONDENT: Warrie Grazing Pty Ltd
INSURER:CGU Workers Compensation (NSW) Ltd
FILE NUMBER: WCC11381-04
DATE OF ARBITRATOR’S DECISION: 17 August 2005
DATE OF APPEAL DECISION: 21 July 2006
SUBJECT MATTER OF DECISION: Sections 66 and 67 Workers Compensation Act 1987; effect of multiple pre 2002 injuries on right to lump sum compensation.
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Adams Leyland
Respondent: Sparke Helmore
ORDERS MADE ON APPEAL: Time to appeal is extended to 29 September 2005.
Paragraphs 1 and 2 of the Arbitrator’s decision dated 17 August 2005 are revoked and the following orders made:
“1. Award for the Applicant in the sum of $15,000.00 pursuant to section 66 of the Workers Compensation Act 1987 in respect of a 20% permanent loss of use of the Applicant’s right leg at or above the knee.
2. Award for the Applicant in the sum of $15,000.00 pursuant to section 67 of the Workers Compensation Act 1987.
3. Award for the Respondent in respect of the claim for compensation for the Applicant’s right arm.”
Paragraph 3 of the Arbitrator’s decision dated 17 August 2005 is confirmed.
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 16 September 2005 Paul Anthony Richardson (‘the Appellant Worker/Mr Richardson’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 17 August 2005.
The Respondent to the Appeal is Warrie Grazing Pty Ltd (‘the Respondent Employer/Warrie Grazing’).
Mr Richardson was born on 19 September 1963 and is now 42 years old. After completing year 10 in 1979 he worked as a drover for two years, a station hand for three years, a silo worker for five years and then a mill hand for a similar period until he started work for Warrie Grazing in mid 1995 as a farm manager.
He continued that work without mishap until 6 October 2000. On that day he was riding a four wheel motor bike when he ran over a piece of wood which broke and penetrated his work boot and punctured the skin on his right foot causing a significant wound. His wife drove him to Bourke District Hospital where he was given a tetanus injection and the wound was dressed. No sutures were needed and he was allowed to go home.
He was off work for two days and then performed lighter duties for about two or three weeks before resuming full duties. The wound took about six months to properly heal. In that time it became ulcerated and he was forced to walk on the lateral side of the foot. Mr Richardson describes his foot as feeling numb and being sensitive to temperature changes. He continued to walk on the lateral aspect of his foot until his second injury in July 2001.
On 7 July 2001 a lamb fell onto his right foot causing an inversion injury to his right ankle. This incident caused his foot to become inflamed again. His ankle deteriorated over the next few weeks resulting in him seeking medical treatment from his general practitioner, Dr Meldrum, who referred him to Dr Slater in April 2002.
Dr Meldrum initially thought the Appellant Worker had gout and prescribed anti inflammatory medication which gave no relief. Physiotherapy was tried without success. The insurer referred Mr Richardson to Dr Lim in March 2002 who diagnosed “complex regional pain syndrome type 1”, previously know as “reflex sympathetic dystrophy” (‘RSD’).
He worked on until October 2001 when he reduced his hours to four per day on lighter duties which he continued until early 2002 when he ceased work. In mid 2003 he developed similar symptoms in his right arm. As at the date of the Arbitration hearing on 28 July 2005 he had not returned to work and was continuing to have significant restrictions in his right ankle and leg as a result of his condition.
On 15 July 2004 an Application to Resolve a Dispute (‘the Application’) was filed in the Commission seeking lump sum compensation of $21,000.00 in respect of a 30% loss of use of his right leg below the knee, $8,000.00 in respect of a 10% loss of use of his right arm at or above the elbow and $29,000.00 for pain and suffering.
The claim was referred to an Approved Medical Specialist (‘AMS’) who examined Mr Richardson on 10 May 2005 and issued a Medical Assessment Certificate (‘MAC’) on 25 May 2005. The MAC certified the Appellant Worker to have a 20% permanent loss of use of his right leg at or above the knee as a result of his work injuries. The AMS did not assess the right arm as he felt that the development of symptoms in the arm in mid 2003 was too far removed from his employment for there to be any casual relationship between the symptoms and the work.
The parties made written submissions to the Arbitrator and further oral submission in a teleconference on 28 July 2005. In a reserved decision delivered on 17 August 2005 the Arbitrator accepted the Respondent Employer’s submissions that Mr Richardson had suffered two losses to his right leg of 10% each and, therefore, he had no entitlement to compensation for pain and suffering.
The Appellant Worker seeks leave to appeal that decision.
LEAVE TO APPEAL
Monetary Thresholds
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The Appellant Worker submits that the Arbitrator should have found a 20% loss of use of the right leg at or above the knee. Had that finding been made he would have been entitled to an award of compensation under section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) of the order of $7,000.00 to $15,000.00.
Therefore, the quantum in issue in the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. As the whole of any potential compensation is “at issue” in the appeal, the threshold in section 352(2)(b) is also satisfied.
Time
The Appellant Worker’s solicitors submit that the appeal was originally lodged within time by fax on 14 September 2005. Documents may be lodged with the Commission by fax (Workers Compensation Commission Rules Rule 19(2) (‘the Rules’)). The Commission has no record of receiving any fax on that day. The appeal documents were received by the Commission on 16 September 2005 but rejected because no submissions were attached seeking an extension of time. The appeal was lodged again on 29 September 2005.
In support of their application to extend the time to appeal the solicitors for the Respondent Worker submit that:
(a)the appeal was forwarded by fax at 3.55pm on 14 September 2005 and a statutory declaration sworn by Louise Debra Millington on 27 September 2005 has been filed in support of that assertion;
(b)no prejudice will be suffered by the Respondent Employer if time to appeal is extended, and
(c)significant prejudice would be suffered by the Appellant Worker if time to appeal is not extended as he will, through no fault of his own, be denied the chance to claim compensation for pain and suffering.
An extension of time in which to appeal can be granted in certain limited circumstances. Rule 77(8) of the Rules provides that:
“(8) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’) where his Honour said at 480:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
The Respondent Employer opposes the time to appeal being extended and submits that in the “absence of any substantive evidence to support” the filing of the appeal it should not be allowed to proceed. No issue of prejudice is raised by the Respondent Employer. A complaint is made that the appeal documents were not served until 11 October 2005. However, by direction issued by the Registrar on 4 October 2005 the appeal did not have to be served until 12 October 2005.
In circumstances where attempts were made to lodge the appeal within time on 14 September 2005, the ultimate delay was only a few days and there was no fault on the part of the Appellant Worker, I believe that to refuse to extend the time to appeal would result in a demonstrable and substantial injustice to the Appellant Worker.
I therefore extend the time to appeal to 29 September 2005.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 17 August 2005 records the Arbitrator’s orders as follows:
“1.The Applicant is entitled to a sum of $7,500.00 in respect of a 10% permanent loss of efficient use of the right leg at or above the knee arising out of the injury, which occurred on 6 October 2000.
2.The Applicant is entitled to a sum of $7,500.00 in respect of a 10% permanent loss of efficient use of the right leg at or above the knee arising out of injury, which occurred on 7 July 2001.
3.The Respondent to pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred:
(a)in finding that the Appellant Worker was entitled to two awards pursuant to section 66 in respect of 10% loss of use of the right leg at or above the knee in respect of each of the injuries on 6 October 2000 and 7 July 2001;
(b)in failing to find that the Appellant Worker had a 20% loss of use of his right leg at or above the knee as a result of his injuries on 6 October 2000 and 7 July 2001, and
(c)in failing to award the Appellant Worker compensation for pain and suffering under section 67 of the 1987 Act.
SUBMISSIONS AND FINDINGS
The Appellant Worker submits that he has suffered one loss to his right leg as a result of his two work injuries. As that loss is 20% of the efficient use of the right leg at or above the knee he submits that he has met the threshold to recover compensation under section 67. The Respondent Employer submits that the Arbitrator was correct to find two losses under section 66 and, as a result of that finding, the Appellant Worker has no entitlement to compensation under section 67 as he has not met the threshold in section 67(2). The resolution of this issue requires a detailed consideration of the legislation and authorities.
The Legislation
At the time of the injuries the relevant provisions of the 1987 Act were as follows; Section 65(3) provided:
“If a loss mentioned in the Table to this Division resulted both from an injury received before the adjustment of an amount mentioned in section 66 or 67 and an injury received after that adjustment, the loss shall, for the purposes of determining the amount of compensation payable under those sections, be treated as having resulted from the injury received after that adjustment.” (emphasis added)
Section 66(1) provided:
“66(1) A worker who has suffered the loss of a thing mentioned in the Table to this Division as the result of an injury is entitled to receive from the worker’s employer by way of compensation for the loss, in addition to any other compensation under this Act, the amount equal to the percentage of $100,000 set out opposite to that loss in that Table.” (emphasis added)
And Section 67 provided:
“(1) A worker who has suffered a loss mentioned in the Table to this Division (or 2 or more of any such losses as the result of the same injury) is entitled to receive from the worker’s employer by way of compensation for pain and suffering resulting from the loss or all losses, in addition to any other compensation under this Act, an amount not exceeding $50,000.
(1A) Because there is a distinction between injury and loss resulting from an injury (and compensation is payable under this section only for pain and suffering resulting from a loss), the pain and suffering for which compensation is payable under this section does not include pain and suffering that results from the injury but not from the loss.
(2) This section does not apply if the compensation paid or payable under s 66 for the loss or all those losses is less than 10 per cent of the maximum amount from time to time referred to in section 66(1).”
The Authorities
These provisions have been considered in a number of cases. In Glebe Rowing Club Pty Ltd v Pride NSWCA 6 December 1995, unreported, (‘Pride’) the NSW Court of Appeal considered the situation where a worker suffered two injuries to her back with different employers. At first instance Judge Burke found a 22% impairment of the worker’s back resulting from both injuries and ordered each employer to contribute equally to that award. His Honour also awarded compensation under section 67 which was apportioned equally between the two employers. On appeal Meagher JA held at page three that the apportionment provisions had no application because the trial judge found “two distinct injuries, each with a quantified amount of damage resulting”. The other Justice forming the majority was Rolfe A-JA who held that Judge Burke found two losses resulting from two injuries. Rolf A-JA quoted from Burke J’s decision and then noted at page 5:
“Those findings, in my opinion, meant the two injuries gave rise to two losses, each of which was, in the view his Honour took, compensable under s66. However, he held the extent to which each was compensable, in financial terms, was at a figure which did not meet the threshold for compensation under s67(1) required by s67(2). That flows from his finding that the amount payable under s66 was $13,000 of which one half was attributable to each injury.”
The appellant’s submission in Pride was summarised by Rolf A-JA at page 11:
“The submissions on behalf of the appellant were that his Honour erred, having found that Miss Pride suffered two injuries that equally contributed to her impairment and having found that the total impairment was between 1:5 and 1:4, in that there was no loss from a single injury that was not less than ten percent of the maximum amount referred to in s66(1). His Honour, having found that $13,000 was payable pursuant to s66, found, so it was submitted, that only $6,500 was payable ‘in respect of the loss resulting from each of the injuries’ and it was not in issue, if that be the correct view as to what his Honour did, that the amount of the award under s66 was insufficient to attract the provisions of s67, so the Miss Pride was not entitled to an award thereunder.”
At page 13 Rolf A-JA said:
“The problem, at this stage, is whether there was one loss resulting from two injuries, or whether there were two losses resulting from two injuries within the meaning of s 66. For the appellant to succeed it must show the latter. It cannot be disputed that after the second incident Miss Pride was suffering from a loss different from that from which she was suffering after the first incident. But the proper inference from his Honour’s findings is that each injury gave rise to a loss compensible equally under s66. That is made clear by his Honour’s findings at AB71, which I have quoted. Thus as a matter of fact his Honour found two injuries giving rise to two losses each of which was compensible in the sum of $6,500, which sum was insufficient to justify an award of compensation under s67.”
His Honour continued at page 14:
“The problem I have with the submission is that it overlooks the existence of two injuries each of which gave rise to a compensable loss under s66, and it is clear from his Honour’s findings that had he been considering each such loss separately he would have found that the amount of compensation payable for each was $6,500. This, as was not in issue, was below the threshold. The aggregation of the two losses into one loss was not, in my opinion, a permissible exercise. The situation may have been different if the factual findings had been that the first incident did not give rise to a compensable loss.”
The end result was that the appeal was allowed and the award under section 67 was set aside.
In the present case the Respondent Employer relies on Pride to support its argument that Mr Richardson has suffered two losses from two separate and distinct injuries and, therefore, he has no entitlement to compensation under section 67 because neither loss meets the section 67(2) threshold. At first consideration that argument has some appeal. However, on a more detailed analysis I do not believe it is correct in the circumstances of the present case.
Pride has been considered in a number of cases by judges of the Compensation Court of NSW. In Sidiropoulos v Able Placements Pty Ltd (1998) 16 NSWCCR 123 (‘Sidiropoulos’) Judge Neilson noted that the strict ratio decidendi in Pride is the interpretation of the first instance factual findings by Burke J (Sidiropoulos at 127). A similar view has been expressed by Judge Bishop in Scanlon v Powercoal Pty Ltd (2001) 22 NSWCCR 82 and by Judge Armitage in Pickles v Staples Waste Removals Pty Ltd (2000) 20 NSWCCR 729 at 747 (‘Pickles’).
In Sidiropoulos the worker suffered two injuries to his back with two employers. Judge Neilson found that the injuries had a cumulative effect resulting in the worker having an 18% impairment of his back and a 9% loss of use of his left leg at or above the knee. That is, the two injuries caused an impairment to the back and a consequential or secondary loss of use of the left leg at or above the knee. There was no separate injury to the leg. Therefore, there was effectively only one impairment or loss. As a result the worker was entitled to compensation under section 67.
In Pickles the worker suffered three discrete injuries to his left shoulder with two employers over several years. The worker accepted a settlement of his claim for his first two injuries with an award for 16% loss of use of his left arm at or above the elbow plus compensation under section 67. He later brought a claim for additional lump sum compensation after his third shoulder injury May 1999. At the hearing before Armitage J he was found to have a 30% loss of use of his left arm at or above the elbow (that is, one loss) as a result of his three injuries. As such he was entitled to additional lump sum compensation.
The Respondent Employer also relies on the Court of Appeal decision in Rail Services Australia v Dimovski & anor [2004] NSWCA 267 (‘Dimovski’). In that case the worker injured his left knee working for the first employer prior to 1 July 1996. In October 1996 he settled his claim for his left knee for a 25% loss of use of the left leg at or above the knee under section 66. On 28 May 1998 he injured his back and left knee whilst working for his second employer. As a result of the May 1998 injury he began to favour his left leg and suffered an overuse injury to his right leg on or after March 1999. He claimed lump sum compensation under sections 66 and 67 from both employers. He recovered no further compensation for his left leg injury but did recover compensation in respect of his back and right leg injuries. When the back impairment was combined with the right leg loss the section 67(2) threshold was satisfied and he was therefore awarded compensation for pain and suffering under that section. On appeal it was held that the trial judge was correct to aggregate the impairment of the back with the loss of use of the right leg to get over the section 67(2) threshold because both the impairment to the back and the loss of use of the right leg had been found to have resulted from the “same injury”, namely, the injury on 28 May 1998.
One of the questions on appeal in Dimovski was: was the finding that the right leg loss resulted from the left knee injury of May 1998 open to the trial Judge as a matter of law? Applying Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 the court held that it was. I see nothing in the Court of Appeal’s decision that assists the Respondent Employer in the present matter. In Dimovski the court was considering the words “or 2 or more of any such losses as the result of the same injury” in section 67(1). In other words: could the impairment to the back be added to the loss of use of right leg to get over the section 67(2) threshold. The court answered that question in the affirmative since the loss of use of the leg and the impairment to the back both resulted from the same injury. If the loss and the impairment had resulted from separate injuries they could not have been aggregated. In my view there is nothing in their Honour’s reasons that would deny compensation to Mr Richardson.
In the present case the question is whether a worker’s injuries have resulted in one loss or one impairment (as was found to be the case in Sidiropoulos and Pickles), or two or more losses or impairments (as Judge Burke was held to have found in Pride). If a worker has only one loss or impairment resulting from multiple injuries it is appropriate to look at the cumulative effect of those injuries to determine the worker’s section 66 entitlements. If that entitlement meets the section 67(2) threshold the worker is entitled to compensation for pain and suffering even though his loss has resulted from more than one injury. Whether a worker has suffered one loss or two will be a question of fact to be determined on the evidence in each case.
Apportionment Authorities
No question of apportionment between employers arises in the present case as there is only one employer and one insurer. However, the Respondent Employer argues that the Appellant Worker’s loss should be apportioned between two injuries. Therefore, in resolving the current issue, it is instructive to consider the approach the Court of Appeal has taken to apportionment in multiple injury cases.
In Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 39 NSWLR 87 (‘Baltica’) it was held that the employer’s liability to the worker is to be determined first before any apportionment under section 22 of the 1987 Act. In Sidiropoulos at [48] Judge Neilson quotes the following passage from Justice Clarke in Baltica:
“Liability here to pay compensation for death or incapacity is, relevantly, created by ss 25 and 33. It arises when incapacity results from an injury or from more than one injury. It is not expressed to arise when incapacity partly results from an injury. Yet s22A(2) speaks of a liability to pay compensation arising from more than one injury and, by virtue of the extended definition, that must include the situation where incapacity results partly from one, and partly from another injury. In this way the terms of s22A(2) may be thought to widen the tests in ss25 and 33. I do not think that they do. No amendment was made to either s25or s33. The test of causation ‘results from’ has not been altered in those sections and it is inconceivable that the legislature intended that it be altered. The better view, in my opinion, is that the test of causation remains as it was and s22(1A) is limited in its operation to the widening of the meaning of the expression ‘results from more than one injury’ where it is found in the Act. Where that expression appears in s22A(2), it is to be understood in the wider sense so that apportionment may be carried out in cases of deemed incapacity. The subsection does not, however, qualify the test of causation in ss25 and 33. It follows that I agree with Burke CCJ's conclusion that a trial judge's initial task is to determine the liability of an employer or employers to pay compensation to a worker. If the worker satisfies the test in the case where are a number of work injuries and apportionment is sought, the trial judge is then to apply the s22 test and that test will be satisfied if the incapacity resulted partly from one injury (presumably the injury which led to the finding under s33) and partly from another or other injuries. While, therefore, I disagree with Burke CCJ in his description of the primary test of causation, I do agree with his view that there is a two-stage process when apportionment is sought.”
Judge Neilson added at [49]:
“Prior to the insertion of the current s22, only the employer at the time of the second injury in the current case, and the insurer then at risk, would have been liable to pay the compensation because as a matter of law the incapacity results from the last injury causative of incapacity or loss. There is no difference in my view between the tests under ss25 and 33 and the tests under s66 and s67. There was no amendment made to those sections at the time that s22 was enacted in its current guise.”
Dimovski also considered Sidiropoulos in detail. Justice Handley expressly approved Judge Neilson’s reasoning in that case and said at [35]:
“Since s 22 in its current form does not affect the test of causation that the Compensation Court is bound to apply before making awards under ss 66 and 67, and compensation must be assessed before apportionment and contribution are considered, the injury or injuries to his left leg that the worker suffered while employed by the second respondent are ignored at this stage of the inquiry. The cumulative affect of all injuries to the left leg which caused one loss of its efficient use at or above the knee are treated as a result of the last causative injury. See Sidiropoulos at 125 and 128. The appeal against the lump sum awards therefore fails.” (emphasis added)
In my opinion, the principles are the same when there is only one employer. It would be irrational if, because of the apportionment provisions, a worker who suffered two injuries with two employers resulting in one loss was able to be compensated for the cumulative effect of his injuries but a worker who suffered two identical injuries with the same employer was not.
I agree with Judge Neilson in Sidiropoulos that there is no difference between the causation test in sections 25 and 33 and the test in section 66 and 67. Section 66 talks about “the loss of a thing” mentioned in the Table “as the result of an injury”. Section 25 says “if death results from an injury”. Section 33 says “if total or partial incapacity for work results from an injury”. It therefore follows that the Appellant Worker is entitled to have his loss assessed as one loss if that loss has resulted from two injuries. This conclusion is consistent with the authorities cited above and with the terms of section 65(3) as it was at the time of Mr Richardson’s injuries. That section expressly states that a worker may have a “loss” from more than one injury, and, in the event that that happens, he or she is to be compensated for “the loss” at the adjusted rate of compensation.
Correct Approach
In my view the correct approach to issues such as the present is to ask: has the worker’s injuries resulted in one loss or two? If the answer is that the worker has only sustained one loss then the cumulative effect of the injuries can be considered. To answer that question it is necessary to consider the meaning of a “loss”. In section 66(1) compensation is payable for the “loss of a thing mentioned in the Table”. The Table refers to “loss of either leg at or above the knee”, “loss of either leg below the knee” and to “loss of a foot”. The MAC found Mr Richardson to have a 20% loss of use of his right leg at or above the knee. That is, he only had one loss. In some cases it may well be open to find that one injury resulted in a loss of use of the foot and a second injury resulted in a loss of use of the leg. In that situation there would be good grounds for finding that the two injuries resulted in two losses and it would not be permissible to combine those losses to get over the section 67 threshold.
It is important to note that the wording of the current section 65 is quite different to the wording applicable at the time of Mr Richardson’s injuries and that may well bring about a different conclusion for injuries after 31 December 2001.
Therefore, whilst in principle there is no reason why a person who suffers from two or more injuries cannot ask the Commission to look to the cumulative effect of those injuries to determine if the section 67(2) threshold has been met, the question remains: is that the appropriate finding in Mr Richardson’s case? The answer to this question requires a detailed review of the evidence and the MAC.
Medical Evidence
The AMS took a history of both injuries and noted that after the first injury Mr Richardson got back to normal duties but continued to walk on the lateral border of his right foot because of pain on the inside of the foot. The foot was purple/blue in colour but did not sweet excessively and Mr Richardson did not seek any medical advice prior to the second accident.
After the second injury his foot was very painful and was black and bruised. He continued to work and experienced pain in the foot and ankle. After several weeks he noticed his foot was changing colour and sweating excessively.
On examination the AMS found a restricted range of movement of the right knee. The right foot felt cold and was sweating excessively. There was a 1cm scar over the medial aspect of the metatarso phalangeal joint of the great toe, the site of the wound in the first accident. There was tenderness over the neck of the first metatarsal medially and a diminished range of movement in the metatarso phalangeal joint of the great toe. There was a reduced range of movement of the right ankle. The AMS’s summary of injuries and diagnoses was:
“Mr Richardson sustained a penetrating injury to the medial border of the right foot on 6/10/00 and an eversion injury to the right ankle on 7/7/01. These injuries have been complicated by the development of complex regional pain syndrome type I (reflex sympathetic dystrophy).”
The AMS concluded his MAC certifying Mr Richardson to have a 20% permanent loss of efficient use of the right leg at or above the knee. In column two of the printed MAC the following appears: “If it is claimed that there is more than one injury to a body part please apportion any loss between the injuries”. The AMS has recorded “a) 6/10/00 – ½ b)7/7/01 – ½”.
Dr Lim saw Mr Richardson on 19 March 2002 (report 20 March 2002). His history is that the wound from the first accident took three months to heal and two months for the bruising to disappear. He records:
“Even after the bruise had resolved and the wound had healed over, his foot did not feel quite right. The medial part of the foot at the first metatarso phalangeal joint remained irritable and he tended to walk on the outer edge of his foot after being on his feet for a while.”
Dr Lim adds that Mr Richardson coped with the demands of his job until his second accident. In the second accident Mr Richardson’s medial hind foot and ankle swelled up and darkened due to bruising. On 19 March 2002 Mr Richardson’s symptoms were that his toes and sole of his foot would turn cold and purplish with prolonged walking and weight bearing. He had a burning pain in the medial ankle and hind foot that was exacerbated with excessive walking. He had a weakness in the medial hind foot so that it tended to roll out. Sometimes the sole of his fore foot would swell accompanied by coldness and purplish discolouration of the toes. This occurred about 12 times since the second injury.
On examination Dr Lim noted the movements of the ankle, subtalar and the joints of the toes were not impaired. Tinel’s sign for tarsal syndrome was positive, suggesting there may be some local entrapment of the tibial nerve behind the medial malleolus. There was weakness of flexion of the great toe. Mr Richardson reported diminished sensation along the medial border of the right foot and in the sole.
Dr Lim’s diagnoses were:
· previous soft tissue trauma to the fore foot at the medial metatarso phalangeal (‘MTP’) joint;
· dysfunction of the tibialis posterior tendon (the term chronic tendonitis may be applied);
· tarsal tunnel syndrome (local entrapment of the tibialis nerve behind the medial malleolus), and
· mild complex regional pain syndrome type I (previously referred to as reflex sympathetic dystrophy syndrome (‘RSD’)).
The doctor then adds that the above diagnoses were “consistent with direct trauma to the medial fore foot and repeated valgus injuries to the hind foot, i.e. consistent with the injuries described” (emphasis added).
A bone scan on 9 November 2001 showed changes consistent with focal degenerative arthritis involving the right talo navicular joint.
Other medical evidence agrees that the Appellant Worker has RSD as a result of his work injuries but is of no assistance in determining the extent to which each injury has contributed to the loss found by the AMS.
The loss was assessed by the AMS to be 20% of the efficient use of the right leg at or above the knee with no deduction for any “pre existing injury, abnormality or condition”. Certain matters certified by an AMS are “conclusively presumed to be correct” pursuant to section 326(1) of the 1998 Act. Those matters are:
“(a) the degree of permanent impairment of the worker as a result of an injury,
(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c) the nature and extent of loss of hearing suffered by a worker,
(d) whether impairment is permanent,
(e) whether the degree of permanent impairment is fully ascertainable.”
The AMS’s statement on apportionment is not one of the matters set out in section 326(1) that is “conclusively presumed to be correct”. The Arbitrator stated at paragraph 29 of his Reasons that:
“Whilst I may not be bound by column two and its content it clearly is a guide as to the AMS’ view in terms of apportionment of loss and as I say had the Applicant been so inclined there might well have been the basis of an appeal as to this apportionment having in mind the onset of the reflex sympathetic dystrophy within the ankle.”
I do not believe the above approach is consistent with the authorities. The body of the MAC does not attempt to explain or rationalise the apportionment set out in column two on page 11. There is no evidence in the case, either in the MAC or elsewhere, to suggest the first injury resulted in a 10% loss of use of the Appellant Worker’s right leg at or above the knee. The first injury was a penetrating wound to the medial aspect of the MTP joint. It left a one centimetre scar. On examination by the AMS there was found to be tenderness over the neck of the first metatarsal medially with a decreased range of movement in the MTP joint of the great toe (MAC page six). The AMS does not suggest that those findings resulted in a 10% loss of use of the right leg at or above the knee. At best such findings might have supported a finding of a loss of use of the right foot. No such finding was made by the AMS as he was never asked to give a separate assessment of the section 66 loss resulting from each injury. The Request for Medical Assessment by Approved Medical Specialist dated 12 October 2004 was silent on that issue. Therefore, it is my view that the ‘apportionment’ set out by the AMS does no more than give an opinion that the found loss (20% of the leg at or above the knee) was the result of the cumulative effect of the two relevant work injuries.
It follows that I do not believe this case “falls squarely within the guidelines set down” in Pride (Reasons paragraph 30). The evidence does not establish that the Appellant Worker’s two injuries gave rise to two compensable losses under section 66. In my opinion the proper view of the medical evidence is that Mr Richardson has suffered one loss (a loss of use of his right leg at or above the knee) as a result of the two injuries to his right foot/ankle set out above.
The Respondent Employer submits that the two injuries each resulted in very different pathology (Respondent Employer’s submissions paragraph eight). As an analysis of the medical evidence shows, there is some merit in this submission. However, I do not believe this submission can succeed unless there is evidence to establish that the two injuries have resulted in two section 66 losses. None of the Respondent Employer’s doctors address that issue. It may have been possible, though I think it unlikely, for an assessment to be done of the section 66 loss resulting from the first injury (possibly an assessment of the foot or leg below the knee) and for a separate assessment to be done of the section 66 loss resulting from the second injury (an assessment of the leg at or above the knee), but that was never sought. In the circumstances of this case, with the complication from the RSD, such a split would have been extremely difficult. It may well be that without the second injury there would never have been any permanent loss resulting from the first injury.
At paragraph 10 of its submissions the Respondent Employer argues that Mr Richardson’s condition of RSD has not resulted from the work injuries. It is submitted that this conclusion is supported by the fact that Mr Richardson has also developed RSD in his right arm without any trauma. Whilst it is open to the Respondent Employer to make this submission, on the available evidence, I do not accept it. Dr Lim was qualified by the Respondent Employer and concluded unequivocally that Mr Richardson’s conditions in his leg, including the RSD, were “consistent with the injuries described”. A similar view was expressed by Dr O’Keefe in his report of 25 May 2004.
The MAC
Throughout the Arbitration hearing there were several references to the findings of the AMS being “binding” on the parties and on the Arbitrator. For example, at page six line three of the transcript the Arbitrator states “I accept the fact that the doctor [AMS] has made a determination as to the impact flowing from each of the respective injuries, and I consider that to be binding”. That is not correct. A valid MAC is “conclusively presumed to be correct” on certain limited matters. But a finding in a MAC does not equate to a determination of all issues between the parties and does not determine liability. That is, it does not determine the issue of “injury” or the issue of “causation”. The effect of a MAC was considered in detail by the Commission in Jopa Pty Limited t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50 (‘Jopa’) where Deputy President Fleming said at [27]:
“However the issue of a MAC does not equate to a determination of the dispute by the Commission. There are obvious reasons why the legislature would have intended that the ultimate determination of the matter rests with an Arbitrator. There may be a number of issues in dispute between the parties which, while not medical issues, must be agreed, or determined by an Arbitrator, in order to finally resolve the matter. These may include issues of liability and associated claims for compensation by way of weekly benefits and medical expenses. Procedural fairness, the filing of evidence and compliance with the procedural requirements of the Workers Compensation Acts (‘the 1987 Act and the 1998 Act’) may also need to be considered.”
Jopa has been considered and applied in Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124 (‘Connor’) where I said at [43]:
“Confusion can arise when an Arbitrator refers a matter to an AMS for assessment under section 326 of the 1998 Act before there has been a determination of whether the event complained of is a compensable injury under the legislation. That has happened in the present case. The expression ‘as a result of an injury’ in section 326(1)(a) means ‘as a result of a compensable injury’. Whether an injury is compensable is to be determined by applying the provisions of the legislation and the relevant authorities to the facts as found by the Arbitrator at a hearing. Neither an AMS nor an Appeal Panel is equipped to determine such matters.”
I added at [48] in Connor:
“In Lyons v Master Builders Association of NSW (2003) 25 NSWCCR 423 (‘Lyons’) Judge Neilson held that ‘injury’ means both the ‘injurious event’ (the work event or incident) and the ‘pathology’ arising from that event. I agree with this statement. Therefore, 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.”
Connor has since been considered and applied in Ooi v NEC Business Solutions Limited [2006] NSWWCCPD 131.
If there is no issue on liability and a valid MAC has issued it will be conclusively presumed to be correct as to the matters set out in section 326(1)(a) to (e) inclusive and, usually, an award will be made by the Commission in the terms of the MAC in respect of those matters.
In the present case the AMS made no assessment in respect of the Appellant Worker’s right arm because he determined that it was “unrelated to employment” (MAC page six) because the right arm symptoms did not develop until mid 2003. The AMS may well be correct in expressing that opinion but his task was to assess the permanent loss of use of the right arm above the elbow. The issues of causation and liability are matters for the Commission to determine according to the terms of the legislation and authorities. No issue is taken with the fact that the AMS did not assess the loss of use of the right arm. Had he made an assessment of the loss of use of the right arm above the elbow it would not have bound the Commission to enter an award in that amount. The Commission would then have to determine liability by looking at all the evidence relevant to “injury” and “causation”.
Conclusion
It follows from the above reasons the Arbitrator’s decision must be revoked and the Appellant Worker is entitled to an award for $15,000.00 in respect of a 20% loss of use of the right leg at or above the knee. That award entitles him to receive compensation under section 67 for pain and suffering resulting from his loss. As no credit issues were raised before the Arbitrator and no oral evidence given I am in as good a position to assessed that compensation as the Arbitrator and that is what I intend to do.
Mr Richardson is now 42 years old. He lives in a de facto relationship and has two children, Cody, aged 13 and Ashley, aged 11. In his statement of 5 July 2004 he summarizes the impact of his loss at paragraph 17:
“The pain in my foot and leg is constant and only dulled by my medication. Prior to my injury I did not take any medication. At its worst, my foot swells until it increases half its size so that I cannot put on a boot. It will turn black or black/blue. Where the stick pierced my foot, there are bright red marks and if it is touched, I experience what feels like electric shocks that travel to my little toe. Not only does my foot swell, but my leg also, up to 6 inches above my ankle. My whole leg will feel numb and stiff. I have to use crutches to get around. This puts extra pressure on my right arm which is now also affected by the RSD that affects my right foot. I am currently taking panadeine forte, neurtonin, MS contin and endep.”
At paragraphs 19 and 20 of his statement he adds:
“On a normal day I have no feeling on the back of my right calf up to above the knee. Usually my foot is light blue in colour and when not swollen it will shrink until it looks like only half a foot. It will also tuck itself under. When I am able to walk, I still have to walk on the side of my foot and I can only wear joggers, not boots. The cold weather, humidity, vibration (such as in a car or coach) and the rise and fall in air pressure as in an aircraft, makes my foot and arm worse. Although they feel numb, any breeze or movement will annoy it [sic] to such an extent that the nerves will tingle and skin will prickle and the skin will become blotchy and change colour. When I have a hot shower, it feels like needles dropping onto the skin of my foot and arm.
This injury and my resulting incapacity have had a devastating effect on my family who now have to carry my workload such as mowing the lawn and feeding the dogs. I have not been able to teach my 2 children how to swim or play any sport like football or tennis and I haven’t been able to ride a pushbike with them to teach them the road rules. This is extremely hard to deal with especially when I see other fathers doing these types of activities with their children and enjoying it. At present family life revolves around me and everyone doing something to help me and not themselves. I find it frustrating and upsetting to have to ask family or friends to do the simplest tasks for me when I used to be able to do them myself.”
In his report of 24 May 2004 Dr Robertson, consultant psychiatrist qualified by the Respondent Employer, noted Mr Richardson’s complaints of continuing severe pain (paragraph 2.4). He also took a history that Mr Richardson had periods of dysphoria which were transient and did not involve periods of depression (paragraph 2.8). He retained a capacity for enjoyment of interaction with family and friends and has maintained reasonably consistent self esteem. Dr Robertson felt there was no evidence of a psychiatric disorder and that Mr Richardson’s response to his problems was “within the realm of normal human experience” (paragraph 10.1).
I note that compensation under section 67 is to be paid for actual pain, or distress or anxiety resulting from the loss. No compensation is payable for the problems associated with the right arm which clearly is causing some pain and discomfort. No attack has been made on the Appellant Worker’s credit and I accept that his loss has resulted in significant pain for a young man who had previously been active in a heavy physical job. Having regard to the evidence before me I assess the Appellant Worker’s entitlement to pain and suffering under section 67 to be 30% of a most extreme case or $15,000.00.
Other Matters
No formal order has been made in respect of the claim for compensation for the right arm. The only issues arising after the teleconference on 30 June 2005 were those set out above. No submissions were made to the Arbitrator or on appeal from either side in respect of the right arm. The evidence is overwhelmingly against the right arm condition having resulted from the Appellant Worker’s employment with the Respondent Employer. For these reasons I believe it is appropriate to make an award for the Respondent Employer in respect of the alleged injury to the right arm.
DECISION
Time to appeal is extended to 29 September 2005.
Paragraphs 1 and 2 of the Arbitrator’s decision are revoked and the following orders made:
“1.Award for the Applicant in the sum of $15,000.00 pursuant to section 66 of the Workers Compensation Act 1987 in respect of a 20% permanent loss of use of the Applicant’s right leg at or above the knee.
2.Award for the Applicant in the sum of $15,000.00 pursuant to section 67 of the Workers Compensation Act 1987.
3.Award for the Respondent in respect of the claim for compensation for the Applicant’s right arm.”
Paragraph 3 of the Arbitrator’s decision of 17 August 2005 is confirmed.
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
Bill Roche
Acting Deputy President
21 July 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
4
7
0