Rick Damelian Pty Limited v Romanas
[2005] NSWWCCPD 158
•20 December 2005
WORKERS COMPENSATION COMMISSION
DETERMINATION OF AN APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Rick Damelian Pty Limited v Romanas (No. 2) [2005] NSW WCC PD 158
APPELLANT: Rick Damelian Pty Limited
RESPONDENT: Athanasios Romanas
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC10454-2003
DATE OF ARBITRATOR’S DECISION: 1 March 2005
DATE OF APPEAL DECISION: 20 December 2005
SUBJECT MATTER OF DECISION: Section 355 of the Workplace Injury Management and Workers Compensation Act 1998; whether Arbitrator dealt with issues not remitted; procedural fairness; jurisdiction of Arbitrator to determine matter remitted; impartiality of Arbitrator, sections 4, 9A and 60 Workers Compensation Act 1987; evidence and weight of evidence.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Leigh Virtue & Associates
Respondent: Shead Lawyers Pty Limited
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant is ordered to pay the costs of the appeal as agreed or assessed.
THE APPEAL
On 24 March 2005 Rick Damelian Pty Limited (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 1 March 2005.
The Respondent to the Appeal is Mr Athanasios Romanas (‘the Respondent Worker’).
The Insurer is CGU Workers Compensation (NSW) Limited.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 1 March 2005 records the Arbitrator’s orders as follows:
“For the reasons set out in this statement the decision in this matter is:
1. The Respondent to pay weekly benefits to the Applicant, pursuant to Section 38 of the Act for the closed period of 17 weeks from the 21st October, 2002 to the 2nd March, 2003, at the rate of $740.38 per week and amount to $12,586.46.
2. The Respondent to pay the Applicant’s medical expenses on production of accounts and/or receipts.
3. The Respondent to pay the Applicant’s costs as agreed or assessed.”
BACKGROUND
The decision of the Arbitrator dated 1 March 2005 is a formal written ‘Statement of Reasons for Decision’ produced by the Arbitrator. An earlier, ex temporé decision was made by the Arbitrator on 8 December 2003, as set out in a Certificate of Determination dated 12 December 2003, in which orders in identical terms to those set out in paragraph 4 above, were made.
On 18 December 2003 the Appellant lodged an appeal in the Commission against the Arbitrator’s decision of 12 December 2003. On 22 December 2004 I revoked the decision after finding that: the Arbitrator’s reasons for decision were inadequate; that this amounted to an error of law, and that the inadequacy sufficiently demonstrated that the Arbitrator had failed to exercise his statutory duty to fairly and lawfully determine the matter. The matter was remitted to the Arbitrator concerned for determination afresh and preparation of written reasons for decision, in accordance with my reasons given on appeal.
The details of the background to the substantive dispute between the parties and my reasons for decision in the first appeal, are set out in Rick Damelian Pty Limited v Romanas [2004] NSW WCC PD 93 (‘Romanas’), and need not be repeated here.
ISSUES IN DISPUTE BEFORE THE ARBITRATOR
The issues in dispute before the Arbitrator are stated at paragraph 7 of his ‘Statement of Reasons for Decision’ (‘Reasons’):
“The issues in dispute in relation to the claim for weekly benefits are:-
* Whether the Applicant is suffering from any injury;
*Whether any injury the Applicant is suffering from is related to his employment;
*Whether the Applicant’s employment is a substantial contributing factor to any injury pursuant to section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’);
*Whether there is a causal connection between the injury, which the Applicant alleges to have suffered in 2002, and any previous injuries, which may have been suffered during the course of his employment;
* Whether the Applicant is partially or totally incapacitated.”
GROUNDS OF APPEAL AND SUPPORTING SUBMISSIONS
The Appellant has provided extensive submissions outlining its grounds of appeal. It submits that it relies upon the grounds set out “in the Application To Appeal Against the Decision of the arbitrator previously filed and registered by the Commission on 30 December, 2003 and the grounds relied on and submissions made at the Hearing of that Appeal. The Appellant also relies on the additional grounds and submissions set out herein.”
In its submissions lodged with the ‘Appeal Against Decision of Arbitrator’ in this appeal, the Appellant also appeals on the following grounds:
·The Arbitrator failed to comply with the requirements of section 355 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’);
·The Arbitrator erred in dealing with issues not remitted to him;
·The Arbitrator in dealing with issues not remitted to him “evinces bad faith with the result that the Arbitrator has fallen into error in his determination and in his purporting to determine the matter at all”;
·The Arbitrator has made number of errors in dealing with matters not remitted to him and the Appellant “reserves the right to … address those various error [sic] in the event that the Presidential member of the Commission appointed to deal with this Appeal considers it necessary for the Appellant to do so”;
·The Arbitrator failed to address the issue as to whether the Mr Romanas’ employment with the Respondent was a substantial contributing factor to his injury rather than to his “ongoing incapacity”, and that the Arbitrator is in error in purporting to consider “a chain of causation” rather than to address “those matters relevant to S.9A”, and
·The Arbitrator erred in that he again failed to give any or any adequate reasons “so far as the considerations relevant to S.9A of the Act are concerned” and failed to make any findings as to what the injury was which led to the alleged incapacity in 2002, or the requirement to incur medical expenses.
The Appellant also sought access to information from the Commission “relevant to what it was that was remitted to the Arbitrator by the Commission following the decision of the Deputy President and for this reason the Appellant is not yet able to finalise its submissions and grounds of appeal.”
Directions were issued on 24 May 2005 directing the Appellant, amongst other things, to specify the documents of the Commission of which it required copies; the issues allegedly dealt with by the Arbitrator that it submits were not remitted by me; the errors allegedly made by the Arbitrator, and the particular grounds of appeal upon which it relies.
In submissions lodged in the Commission on 21 June 2005 the Appellant confirmed that it relied upon the initial submissions set out in the appeal documents filed in the Commission on 24 March 2005. Further grounds put forward may be summarised as follows:
· The Commission constituted by the Arbitrator did not have jurisdiction to make the determination of 1 March 2005, for the reasons set out in the initial submissions lodged in the appeal, and because the matter “does not appear to have been referred back to the Arbitrator either as required or at all.” The Appellant submits that nothing in the material provided by the Registrar indicates that the matter had actually been referred back to the Arbitrator and that “the Statement of Reasons for Decision dated 1st March, 2005 would support the view either that the matter which was to be referred back to the arbitrator was not referred back or that the arbitrator did not know what was referred back to him.”
· The fact of the Statement of Reasons of 1 March 2005 “addressing in detail matters which were not referred back to the Arbitrator and the nature and contents of those reasons convey a reasonable apprehension of a lack of objectivity and fairness on the part of the Arbitrator such as constitutes an error of law ... In addition the Appellant submits that the Arbitrator erred in failing to disqualify himself from considering the matter further.”
· The Appellant was denied procedural fairness in not being permitted or being provided with an opportunity to the Appellant to make further submissions in respect of the matter referred back to the Arbitrator.
· That “it would appear” that no issues have been remitted as such to the Arbitrator or alternatively (and by inference) that all issues have been remitted to the Arbitrator, “and in the circumstances it is not possible for the Appellant to indicate what issues, if any, where [sic] not remitted to the Arbitrator and what issues are not in dispute … those issues which were initially in dispute before the Arbitrator remained in dispute.”
· It is not clear what matters (if any) were remitted to the Arbitrator and therefore, it is not possible to provide submissions in relation to Direction 3(c) of the Commissions Directions dated 24 May 2005.
The Appellant, in its further submissions lodged in the Commission on 21 June 2005, submits that, in any event, the Arbitrator erred in a number of respects in his Reasons of 1 March 2005. It is submitted by the Appellant that:
·the Arbitrator purports to identify “various injuries” relied on including an injury occurring in 2002 whereas the Application before the Arbitrator alleged injuries in 1995,1996 and 1998 only (paragraph 3, page 1 of the Arbitrator’s Reasons);
·the documents that were in evidence before the Arbitrator are set out incorrectly at paragraph 10 of the Arbitrator’s Reasons;
·the Arbitrator wrongly asserted at paragraph 13(iii) of his Reasons that he “determined that the report was admissible as a claims management phase report…”, but it is clear from the transcript that there was no consideration at all of the report being a claims management report and no submissions were made in this regard;
·the Arbitrator is in error in asserting at paragraph 16 of his Reasons that some of the submissions made on behalf of the Respondent are open to the suggestion that they are misleading, and this “evinces a lack of impartiality on behalf of the Arbitrator”. The Appellant also relies on comments of the Arbitrator “set out in sub paragraphs b, e, l and u of the Arbitrator’s reasons (amongst others)”;
·the Arbitrator is in error in considering the inaccurate history provided by Mr Romanas to Dr Edwards “and referred to in paragraph 16a of the Arbitrator’s Reasons. Moroever, the assertions in paragraph 16b “to the effect that inaccurate histories (which are provided by the Applicant) can somehow be read to impugn the credit of ‘the insurance company’ (which was not and could not be in issue) constitutes an error of law and shows and incorrect reversal of the onus and evinces bad faith and lack of impartiality. In the same way the Appellant says that assertions that inaccurate histories and matters that reflect adversely on the Applicant’s credit constitute a ‘two edged sword’ also constitutes an error”;
·the assertion by the Arbitrator in paragraph 16e of his Reasons, that Dr Roarty’s view to the effect that something occurring in 1992 was work related could be used to support the Arbitrator’s determination is an error, as no injury in 1992 was relied on in the Application made to the Commission. A similar error is made in paragraph 16g of the Arbitrator’s Reasons in relation to the opinion of Dr Harrison;
·the Arbitrator erred in paragraph 16h of his Reasons in purporting to consider that some condition in 1992 was work related;
·the Arbitrator erred in “apparently relying” on the report of Dr Innes-Brown as assisting Mr Romanas while apparently rejecting his views regarding “causation and S.9A.”;
·the “apparent assertion” by the Arbitrator in paragraph 16 to the effect that material from Dr Smith would not be admissible while purporting to admit material from Dr Cairns constitutes an error;
·the assertion that the Appellant can be criticised by not having obtained an additional report from Dr Cairns involves a reversal of the onus and constitutes an error;
·the Arbitrator’s criticism of the views expressed by Dr Edwards is without foundation and constitutes an error. “Alternatively it is a criticism that could equally be applied to the reports relied on by the Respondent worker and in this respect the failure to apply the same critical analysis to those reports constitutes an error.”;
·any “purported reliance on ‘Mikata’s case’ (sic)’” constitutes an error of law;
·assertions by the Arbitrator to the effect that comments of Dr Cairns can be read as eroding or destroying the Appellant’s submissions “in respect of S.9A constitute an error and evinces bad faith and lack of objectively [sic] particularly as the views of Dr Cairns predate the injury sustained at home by the Applicant in 2002.”;
·the consideration by the Arbitrator to the effect that Dr Harrison’s report regards Mr Romanas’ difficulties as arising from, and causally connected to, his employment with the Appellant and that the employment was a substantial contributing factor constitutes an error “in that it fails to acknowledge that not all of the workers employment with the Respondent (and in particular not any alleged injury in 1992) were relied on in the Application or in support of the claim.”;
·the Arbitrator is in error in purporting to find a weekly rate of compensation of $740.38 “apparently on the basis that “no evidence was brought to refute the Applicant’s claim.” This is a reversal of the onus and as there was no evidence to support that rate and no basis at all for any finding in respect of it, this constitutes an error, and
·the Arbitrator is in error in “considering the issues raised under S.9A of the Act by reference to what is said to be a ‘chain of causation’ rather than my reference to the requirements of the Act and is also in error in again failing to provide adequate reasons.”;
The Appellant also submits:
“In regard to Item 2 under “Grounds of Appeal’ in the Appeal filed the grounds and submissions relied on are those which were relied on in the initial Appeal. Those grounds and submissions are restated firstly for the preservation if required and secondly to the extent that they relate to issues which again need to be agitated in respect of this present Appeal. As the Appellant is not able to determine what matter has been referred to the Arbitrator the Appellant is not yet able to exclude any of the grounds or submissions previously made for the purpose of this present Appeal. Those grounds and submissions are relied on because the arbitrator has purported to give further reason [sic] on most (if not all) of the issue [sic] which were before the Arbitrator at first instance and which were the subject of the ex-tempore decision.”
OPPOSITION TO APPEAL AND SUPPORTING SUBMISSIONS
Mr Romanas submits that the Appellant is not entitled to “re-agitate” any matters upon which it failed in the appeal heard and determined on 22 December 2004.
He further submits that the Appellant asserts that the Arbitrator failed to deal with, what the Appellant says, was the only matter remitted to the Arbitrator according to law, that is, the application of section 9A of the 1987 Act. Mr Romanas invites attention to “paragraph jj at page 14 of the [Arbitrator’s] Statement of Reasons for Decision dated 1 March 2005 where the Arbitrator, as he was entitled to do, accepts and relies upon the opinion of Dr Harrison, orthopaedic surgeon and on the basis of that opinion, found that the injury suffered by Mr Romanas in circumstances arising out of his employment, to which his employment was a substantial contributing factor with the necessary causal connection having been established.
Mr Romanas submits that the Arbitrator dealt with the only matter remitted to him by the Deputy President, “but he has dealt with it clearly and unambiguously.”
In response to the Appellant’s further submissions dated 16 June 2005, Mr Romanas submits that if the Appellant was aggrieved by the absence of some direction by the Deputy President in remitting the matter back to the Arbitrator to determine it afresh, it had the opportunity but took no action with regard to it. Mr Romanas further submits that the remittal was made in accordance with section 352(7) of the 1998 Act.
Mr Romanas further submits that the Arbitrator complied with the provisions of section 354 of the 1998 Act in determining the matter afresh and preparing written reasons for his decision. He did “nothing more and nothing less” than what he was required to do.
ISSUES IN DISPUTE ON APPEAL
The issues in dispute in this appeal are:
(1)whether the Arbitrator failed to comply with the requirements of section 355 of the 1998 Act;
(2)whether the Arbitrator erred in dealing with issues that were not remitted to him;
(3)whether the matter was properly referred to the Arbitrator, following the order made on appeal on 22 December 2004, remitting it back to the Arbitrator for determination afresh and preparation of written reasons for decision and whether the Arbitrator had jurisdiction to make the determination of 1 March 2005;
(4)whether there was a lack of objectivity and fairness on the part of the Arbitrator such as to constitute a breach of procedural fairness and therefore an error of law, and whether the Arbitrator should have disqualified himself;
(5)whether there was a lack of procedural fairness because the Appellant was not provided with an opportunity to make further submissions to the Arbitrator, and
(6)whether the Arbitrator made errors of law, fact or discretion in arriving at his decision, including whether he made findings not based on evidence or contrary to the evidence.
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.”
The Appellant submitted at the time of lodging the appeal, that the matter should not be dealt with on the papers and a hearing should be arranged. The basis of this submission is that the issues are complex and that the Appellant should be provided with the opportunity to address the Commission on the grounds of appeal. Moreover, the Appellant has sought information from the Commission, which at the time of lodging the appeal had not been provided. Mr Romanas submits that the matter may be dealt with on the papers.
The Appellant has now been provided with a response from the Commission, and has formulated and lodged further, detailed written submissions in support of its appeal in accordance with Directions issued. I also have the benefit of written responses from Mr Romanas to each of the Appellant’s written submissions in this appeal, the transcript of the proceedings before the Arbitrator, the Commission file containing all relevant documents in evidence in the dispute between the parties, and the written Reasons prepared by the Arbitrator. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and taking into account the submission by the parties, 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 monetary threshold in section 352(a) and (b) is satisfied.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
There appears to have been some lack of strict compliance with the Workers Compensation Commission Rules 2003 (‘the Rules’) and Directions. However, as there is no evidence of any injustice or disadvantage to either party, I waive the requirement for compliance in these instances.
Leave to appeal is granted.
EVIDENCE
The evidence that was before the Arbitrator, and that was before me in Romanas, is before me in this appeal, and is set out or referred to in Romanas.
No fresh evidence has been submitted.
Medical reports and other documents
Dr John Macarounas, General Practitioner, issued a letter dated 18 February 1995 to the Appellant, stating that Mr Romanas had been reviewed on that day in respect of his back pain. He went on to say, “He still has an appreciable level of pain in his back and both legs. He has been referred to an orthopaedic surgeon on 28/2/95. He will remain unfit for work from 18/2/95 till 25/2/95 …”.
Dr John Roarty, Orthopaedic Surgeon, St Vincent’s Clinic wrote to Dr Macarounas (copy to the Appellant) on 1 March 1995 reporting that Mr Romanas had informed him of an injury “which occurred on 8th February last when, during the course of his work, he was working in the front seat of a car in a confined space beneath a dashboard and he twisted his back.” Dr Roarty gave details of the symptoms being experienced by Mr Romanas. He also referred to the 1992 incident, which he says was work related, and indicated that Mr Romanas had made a good recovery “and was completely pain free until the more recent injury on 8th February 1995.” Dr Roarty expressed the opinion that Mr Romanas had sustained an acute lumbo-sacral strain due to the injury of 8th February 1995. He stated further:
“There is, at this stage, no clinical nor radiological evidence of any significant intervertebral disc prolapse. He has obviously strained his back which was the seat of a laminectomy some 3 years ago, from which he made a very good recovery and he will make a further recovery from this more recent injury and he will need to rest his back for another 10 to 14 days, when I anticipate he should be fit to resume his work …”.
No workers compensation claim was made in relation to the 1992 incident, and that is adverted to in the Arbitrator’s Reasons. Mr Romanas said in his statement of 24 July 1998, “Because I could not pinpoint the exact cause of my back problem I did not claim it on workers’ compensation.” Moreover, Mr Romanas had been treated for pain in the low back area with right sided sciatica on previous occasions, according to Dr Roarty’s letter to Dr S Kossard, dated 25 October 1989. There is no evidence that this was work related.
According to a printout dated 22 July 1998 in respect of claim 119720, the Insurer paid workers compensation weekly benefits to Mr Romanas for total incapacity, and medical expenses, following an injury sustained in 1995.
In relation to the injury sustained in 1996, according to Mr Romanas’ statement, he felt pain in his lower back and left leg while working on an exhaust manifold and bending over an engine, “and exerting force because the nuts were rusted on the manifold”. He sought treatment from Dr Macarounas and Dr Roarty once more and had some time off work.
Workcover medical certificates were issued by Dr Macarounas in July and August 1996 and according to a printout dated 22 July 1998, in respect or claim 2140806, the Insurer paid weekly benefits to Mr Romanas for total incapacity following injury in 1996.
According to Mr Romanas’ statement of 24 July 1998, on 14 April 1998, he was squatting on the driver’s side of a vehicle working on an engine-timing belt. He said that he was turning part of the engine with a breaker bar. He claims that he was pushing down on the breaker bar with his right arm from a squatting position when he felt a sharp pain in his lower back and pain down his left leg. He said that this occurred at about 2pm on that date. He said that he continued to work and he did not report the matter to anyone on that day. He stated that his wife picked him up from work at about 4.30pm and they drove home. He said that he was in great pain all night. He called Dr Mararounas the next day and also contacted Mr John Kalcare, Service Adviser employed by the Appellant, and reported the details of the injury to him. Two days later arrangements were made for him to be transported to St Vincent’s Hospital by ambulance. He underwent various tests and examinations, and duly lodged a claim for workers compensation. He said that the Insurer “accepted liability”, and on 8 May 1998 “Dr Pell performed a second laminectomy on me at St Vincent’s Private Hospital.”
According to a printout dated 22 July 1998 in respect of claim number 2144711 ambulance and other medical expenses were met by the Insurer.
Mr Romanas was in receipt of weekly payments at the date of his statement.
As there is a significant amount of medical evidence in this matter that ranges over various incidents and time spans, it is convenient to deal with it by reference to each of the principal persons who provided it.
Dr Macarounas
In his letter of 27 January 2003 to Mr Romanas’ Solicitor, Dr Macarounas, Mr Romanas’ treating general practitioner, made a number of observations including that:
·Dr Roarty noted in relation to Mr Romanas “initial assessment and surgery” that “this was an L4/5 disc prolapse which caused left sided L5 nerve root to be compressed leading to left leg pain. Surgery was a laminectomy and excision of the prolapse”;
·“Dr Roarty has stated that this was a work-related injury, however a WC claim was not made.”;
·In 1995 Mr Romanas was injured at work again, “the L4/5 disc region again and after 2 weeks he resumed work. This was a WC claim.”;
·In 1998, “he again injured his back at work and this required an L4/5 laminectomy and renewal and repair of the left L4/5 disc prolapse with freeing of the left L 5 nerve root. He recovered sufficiently well to resume light selected duties at Rick Damelian Motors. Since the 1998 surgery he never fully recovered and was not able to partake of many activities including home duties, playing with the family and hobbies like bush-walking etc.”;
·“Mr Romanas left Rick Damelian some time later and worked for another motor vehicle company doing the same … duties.”;
·“In September 2002 Mr Romanas bent over to pick up a towel at home and reinjured his back, except that this time it was on the right-hand side and down his right leg in contrast to his previous injuries. He subsequently saw Dr Malcolm Pell who found that the pain was coming from the R L4/5 FACET JOINT. An injection to this region subsequently brought relief.”, and
·“The contentious issue is whether this new injury is part of the original 1995 and 1998 injuries.”
Dr Macarounas goes on to express the following view:
“I feel that it is all part of the one process, including his 1992 injury which was work induced (according to Dr Roarty) but not claimed as W/C. The 1995 and 1998 injuries at work produced a similar lesion to the 1992 incident, ie L4/5 disc prolapse to left with L5 nerve root compression. Mr Romanas, therefore has 3 separate injuries to L4/5 disc and required 2 operations. The final insult in September 2002 was injured [sic] the R L4/5 facet joint.”
Dr Macarounas goes on to express the view that the whole area is one mechanism. “Whatever affects one side must produce a … strain and weakening on the other side.” He points out that Dr Cairns, in his report of 7 October 1999 to the Insurer, states that Mr Romanas is unlikely to present again as a candidate for surgical procedure provided he exercises due care and precaution regarding his disability, but in the event of lower back pain, with the passage of time, he would ultimately present as a candidate for fusion at the affected level. He also observes that Dr Cairns stated that Mr Romanas achieved a full and complete recovery from the 1992 incident [for which no claim was ever made] with no on-going disability, and “On that basis therefore it is my (Dr Cairns’) opinion that the worker’s current (1999) impairments are related to the injury sustained with the insured.”
Dr Macarounas’ concludes by offering the following:
“I am of the opinion that his present injury is a mechanical disruption to the whole L4/5 mechanism due to both surgeries 1992 and 1998 and that because his work at Rick Damelian was accepted as the cause for his 1998 injury and that this R sided L4/5 facet injury is purely a manifestation of the mechanical arrangement to the smooth functioning of the L4/5 joint, then liability should be with CGU and Rick Damelian despite the fact that this injury happened at home.
It has been accepted and properly documented that Mr Romanas was having on-going difficulties following upon his 1998 injury and that is why he was working light duties at Rick Damelian. Dr Anthony Cairns predicted future problems in his 1999 report for CGU.”
Dr Roarty
Dr Roarty, treating orthopaedic surgeon, had treated Mr Romanas before the date of the alleged injuries, the subject of the instant case. An examination of the lumbar spine, according to Dr Roarty’s letter of 23 September 1992 to Dr Macarounas, indicated that Mr Romanas was very tender to palpation in the area between the 4th and 5th lumbar vertebrae and he had pain extending down the left calf on forward flexion and, as he bent forward, he lurched to the left side. All other movements were very limited. Straight leg-raising was 50 degrees on either side. There were no neurological signs. The CT scan of 16 September 1992 revealed a large prolapse in the space between the 4th and 5th lumbar vertebrae with compression of the 5th lumbar nerve root. According to a report dated 25 October 1989 to Dr Kossard, Mr Romanas “did have an original attack some 10 years ago but it settled down after some treatment with a chiropractor, but he developed a fairly severe recurrence of pain a month ago when he was lying in an uncomfortable position on a couch.”
In his report of 1 March 1995, Dr Roarty states that Mr Romanas had sustained an injury at work on 8 February 1995, developing acute pain in the lumbar spine and within a few days, the pain had radiated down the back of his left leg as far as the left calf and then, one week later, into the right calf. At that point, his condition was “slowly improving”. Dr Roarty refers to the injury in 1992 as “work related” (but for which no workers compensation claim was ever made). He expressed the following opinion:
“Mr. Romanas has sustained an acute lumbo-sacral strain due to the injury of 8th February last. There is, at this stage, no clinical nor radiological evidence of any significant intervertebral disc prolapse. He has obviously strained his back which was the seat of a laminectomy some 3 years ago, from which he made a very good recovery and he will make a further recovery from this more recent injury and he will need to rest his back for another 10 to 14 days, when I anticipate he should be fit to resume his work …”.
In his report of 22 February 1999, Dr Roarty recounts the history of Mr Romanas’ 1998 injury including his admission to hospital on 16 April 1998. He observes that, “There was a history of lumbar surgery in 1992 with similar pain after lifting a heavy object then. He had made a full recovery from that surgery.” Dr Roarty reviewed Mr Romanas’ condition on 30 April 1998, 24 June 1998, 21 August 1998 and 19 November 1998. He said that Mr Romanas underwent surgery on 8 May 1998. He presented the following opinion and prognosis:
“OPINION: as a result of lifting the motor engine at work on 14 April, 1998 Mr Romanas sustained an L4/5 disc protrusion with a free fragment of disc pushed out jamming the L5 nerve root. This caused back pain and left sided sciatica. There was a history of previous back surgery but he had made a full recovery from this in 1992 and [it] had not caused him any problems and he was able to return to work at full duties as a motor mechanic.
PROGNOSIS: will be of continuing pain, which will require medication and injections to control it.
He continues working on permanent light duties; he will not be able to return to work at full duties as a motor mechanic. Restrictions would be of no lifting weights or more than 15 kilograms, repetitive bending or prolonged sitting or standing. He is fit to work within these restrictions.
I do not believe there will be any need for further surgery and that the continuing pain will have to be controlled with medication and injections.”
Dr Pell
In a series of reports to Dr Macarounas, from 24 April 1998 to 25 June 1998, Dr Pell, treating neurosurgeon, restates in broad outline the history of the 1998 incident and states that lumbar myelogram and post surgical myelogram was performed on Mr. Romanas. This showed a significant postero-lateral disc protrusion of the L4/5 level towards the left side with compression of the left L5 nerve root.
He states that an operation was performed on 8 May 1998. He says:
“In the lateral position with the left side uppermost the previous incision was reopened and the L4/5 space entered via an interlamina approach with removal of some of the lower laminae of L4 and the associated scar tissue. The L5 nerve root was tightly jammed at the origin of the nerve root, there was a free fragment of disc, which was removed and then the disc itself was incised and a moderate amount of remaining degenerative disc material removed. The nerve lay free at the end of the procedure.”
On 25 June 1998 Dr Pell said that Mr Romanas was making a reasonable recovery but that he would need to remain off work for a further six weeks and continue with exercises. On 24 November 1998 he reported that Mr Romanas’ back pain was continuing unchanged and that he was employed on permanent light duties. He said that there was weakness in Mr Romanas’ left foot. He had arranged for a lumbar epidural injection to ease the chronic pain.
On 22 February 1999, Dr Pell restates Mr Romanas’ history including a brief reference to the incident at work in 1998. He provided the following opinion and prognosis, as stated in paragraph 47 above:
“OPINION: as a result of lifting the motor engine at work on 14 April, 1998 Mr Romanas sustained an L4/5 disc protrusion with a free fragment of disc pushed out jamming the L5 nerve root. This caused back pain and left sided sciatica. There was a history of previous back surgery but he had made a full recover from this in 1992 and had not caused him any problems and he was able to return to work at full duties as a motor mechanic.
PROGNOSIS: will be of continuing pain which will require medication and injections to control it.”
According to a report dated 12 November 1999 to Dr Macarounas, Dr Pell said that it had been twelve months since he had last seen Mr Romanas and he had been making reasonable progress. He had experienced two attacks of low back pain and spasms “in the last fortnight” and the pain was persisting. He considered that Mr Romanas was experiencing facet joint irritation which, if pain continued, he would benefit from a left sided L4/5 fact joint injection.
On 24 October 2002 Dr Pell referred to the incident at home when Mr Romanas bent over to pick up a towel and experienced pain on the right side of his back and outer side of the right thigh to the knee. He pointed out that previous pain was in the left leg. A CT scan revealed, “some degenerative changes in the facet joints at L4/5 and L5/S1 but there is no recurrent disc bulge, particularly at the previous operated L4/5 interspace.”
Dr Harrison
In his report of 30 October 2003, Dr Harrison, gives a history of Mr Romanas’ condition referring to an alleged injury that occurred in 1978, but which was not the subject of a workers compensation claim. Mr Romanas saw Dr Roarty in 1984 because he was experiencing increasing patters of lower back discomfort. He was admitted to hospital and was administered a cortisone injection which moderated some of the more intense pain and he “gradually settled down.” He then refers to the 1992 incident, which was not the subject of a claim for workers compensation. It is noted that Mr Romanas underwent surgery in 1992. Dr Harrison said that this procedure afforded excellent relief of left sciatic discomfort, which had been troubling him. Dr Harrison refers briefly to the 1995 incident, indicating that Mr Romanas recovered with rest and conservative treatment. In relation to a further episode, the 1996 incident is mentioned, but Mr Romanas returned to work after one week.
He describes the 1998 incident in much the same way as has been outlined in other medical reports, already mentioned. He reports that after x-rays were taken and a lumbar myelogram was performed at St Vincents Hospital, an L4/5 intervertebral disc protrusion on the left hand side with compromise of the L5 nerve root at that level, was revealed. Dr Harrison said that Mr Romanas made a slow recovery after that with moderation in left sciatica and remained off work through June/July 1998 and resumed work in September 1998. Dr Harrison said that Mr Romanas experienced other episodes of low back pain since then, which disabled him temporarily, “but settled with conservative treatment”. He referred to the 2002 incident experienced by Mr Romanas at home, where he had acute right-sided lower back pain, and pain radiating down the antero-lateral aspect of the right thigh to the knee.
Dr Harrison says that, at that point in 2002, Mr Romanas was experiencing intermittent pain affecting the lower back, right leg, “much worse than the left”. He says that there has been some improvement but Mr Romanas remained frustrated at the vulnerability to aggravations of back pain which are still present and which were still troubling him quite frequently. Dr Harrison described incidents up to 1992 as “odd episodes of mechanical back and left leg pain”, leading ultimately to acute left sciatic discomfort which led to a decompressed laminectomy and disc excision at the L4/5 level “occurring with a good, early outcome after that surgery.”
Dr Harrison expresses the view that Mr Romanas’ injury was a “substantial contributing factor” to his “current injury”. However he says that there is a clear history of back injury occurring in his former employment. Relevantly, he says, “The incident in September 2002 (when he simply bent to pick up a bath towel from the floor at home) in my opinion, represents an index of the vulnerability to aggravation of back and leg pain as he experienced and is very likely to experience in the foreseeable future.” Moreover, he states that the incident in September 2002 is part of the progression of “constitutional adaptive changes to his lumbar spine which had followed earlier incidents and injuries, including those in 1995, 1996 and 1998.”
Dr Harrison disagrees with Dr Edwards who expressed the view that the time off work taken by Mr Romanas from September 2002, “does not appear to be work related”. Moreover, he disagrees with Dr Edwards’ view that it “does not appear to be a work-related problem, and I do not think it can be attributed to his 1998 complaint and operation. It would appear to be an aggravation of underlying changes in his lumbar spine, which were present in 1998.” He also disagrees with Dr Edwards’ opinion that Mr Romanas’ employment with the Appellant is not a substantial contributing factor to his “present alleged injury.”
Dr Harrison explains his reasons by pointing to two surgical procedures in 1992 and 1998 by Dr Pell. He says:
“Notwithstanding a prior history of back pain problems and radicular pain symptoms, he certainly went through frank and disabling circumstances in 1992 and 1998 such that after appropriate investigations, necessitated revision surgery at the same level being done for acute disc prolapse problems in his lumbar spine.”
Dr Harrison makes his point, “irrespective of the condition of his back when he started work, [it] did not preclude him working effectively as a mechanic for Rick Damelian Motors for that time.”
In referring to Dr Innes-Brown’s report of 13 August 2003, Dr Harrison conceded the point made that edpidural fibrosis is a complication of spinal surgery beyond the control of the surgeon. However, he states that the process relates to previous surgical intervention having occurred, possibly that in 1998 by Dr Pell or as a late effect from surgery by Dr Roarty in 1992 and “also possibly due to the Cortisone injections which have been done into his spine on different occasions in the intervening years in and around his lower lumbar spine and/or facet joint areas in the intervening times, as I have described.”
However, Dr Harrison does not disagree with Dr Innes-Brown’s suggestion that the pathology affecting Mr Romanas’ back is typical of the slowly progressive problem of lumbar spondylosis and that the episodes of pain, including sciatica and the failure of other soft tissues as part of the complex anatomy of the spine, is more related to that process superimposed on the heavy and demanding work undertaken as a motor mechanic. However, he maintains that Mr Romanas’ period of employment with the Appellant is a substantial contributing factor to his “current condition, notwithstanding those other issues.”
Dr Harrison concluded that Mr Romanas was able to work in a more sedentary job in the motor trade but he should not and will not safely be able to get back to the intermittent heavy labouring and straining tasks expected of a motor mechanic in the industry, “in the foreseeable future”. He considered the 1992 event to have been work related and believed that it is a current contributor “to the pathology and injuries and setbacks that have affected his lumbar spine over many years now.”
Dr Cairns
Dr Cairns, orthopaedic surgeon, conducted an examination of Mr Romanas on 7 October 1999 at the request of the Insurer, “for the purposes of providing a report in respect of ongoing disability allegedly the consequence of injury sustained during the conduct of his work on or about 14 April 1998.”
While Dr Cairns’ report was requested by the Insurer, in Romanas, I held that the Arbitrator was correct in admitting Dr Cairns report as a “claims management phase report”, and not as a “medico-legal report”, for the purposes of the current dispute.
In recounting Mr Romanas’ medical history, Dr Cairns said, in relation to the 1998 incident, “He was taken to St. Vincents Hospital where he remained for 7-8 days. However, following discharge persistent symptoms were such that he was again admitted to hospital and on 8 May 1998 underwent laminectomy and disc excising at the L4/5 level. This operation resulted in considerable lessening of both low back and left leg pain.”
Following the investigations described in his report, Dr Cairns stated the following:
“OPINION
This 43 year old motor mechanic gives a history of the acute onset of low back pain and left sciatic nerve root compromise after twisting during the conduct of his work on or about 14 April 1998. Diagnosis of a left postero-lateral intervertebral disc herniation/sequestration at the L4/5 level was subsequently established and he underwent laminectomy and disc excision on 8 May 1998, from which he has derived a satisfactory result at this point.
FITNESS
Post-operatively the worker has regained fitness to a level, which will allow him to function in an occupation of light manual duties. He will not regain fitness to undertake work of a heavy manual nature, including his pre-injury occupation as a motor mechanic. He is otherwise fit for work of a light manual nature, including sedentary, mixed sedentary and standing, sales, supervisory, clerical or administrative work, or any other occupation satisfactorily fulfilling the criteria of light manual duties, to the exclusion of any requirement for prolonged sitting, prolonged stranding, or repetitive bending or lifting.
ATTITUDE
The claimant presents as a credible historian with a positive attitude towards resumption of gainful employment and motivation towards his disability.
PROGNOSIS
The claimant enjoys a fair to good prognosis, but will be permanently restricted to work of a light manual nature. I believe that at this point he has reached a static level of recovery, and his degree of disability is now permanent. He is likely to suffer ongoing lower back pan of variable extent associated with some left lower extremity symptoms. These should be manageable by the usual conservative measures and it is unlikely that he will present again as a candidate for surgical treatment providing he exercises due care and precaution regarding his disability. However, should mechanical instability be such as to cause increasing lower back pain with the passage of time, he could ultimately present as a candidate for fusion at the affected level.
ATTRIBUTION
The history of the worker’s injury and disability relates to an incident during the conduct of his work on or about 14 April 1998 and as such his work constitutes a substantial contributing factor in the development of his injury and ongoing disability. He does give an antecedent history of similar injury and disability resulting in L4/5 laminectomy and discectomy in 1992, after which however he effected a full and complete recovery with no ongoing disability. On that basis therefore it is my opinion that the worker’s current impairments are related to the injury sustained with the insured.”
Dr Edwards
Dr Kim Edwards, Surgeon and Medico-Legal Consultant, provided a report dated 30 July 2003 at the request of the Appellant’s legal representative.
The report recounts Mr Romanas’ medical history and based on Dr Edwards’ assessment of the history, clinical findings and investigations. In his conclusion he states, inter alia, that Mr Romanas has apophyseal join overgrowth at L4/5 and L5-S1 levels with exit foraminal narrowing at the L5-S1 level bilaterally. No disc bulge or spinal stenosis was noted. X-rays show disc space narrowing at multiple levels between L1-2 and L5-S1.
The opinion provided by Dr Edwards is as follows:
“Mr Romanas has a long history of back pain, dating back to 1978. There was no incident or injury in 1978. His back pain was of gradual onset.
He was employed by Rick Damelian Motors for eleven years from 1990 as a mechanic.
In 1992 he had an L4-5 lumbar laminectomy carried out by Dr. Roarty because of back and left leg pain.
Mr. Romanas said this back pain occurred gradually without any incident or injury, and did not appear to be suggesting it was a work-related problem.
Between 1992 and 1998 he had occasional back pain and was off work on one or two occasions for a week.
In 1998 he gives a history of a work-related incident, when back pain occurred while he was bending to fix a cam belt. He collapsed at home and had to be taken to St. Vincent’s Hospital.
The medical file indicates that on 8/5/98 he underwent an operation by Dr. Pell, at which there was a large free fragment of disc from the L4-5 disc compressing the L5 nerve root. The fragment was removed and the disc was cleared of degenerative disc material.
Following that procedure he returned to light work, and did not again return to work as a mechanic.
He had an incident at home on 28/9/02 when he bent over to pick up a towel, and this caused severe back pain. He was off work for six months following this.
He had a Cortisone injection, which may have been a right L4-5 facet joint injection, which he said helped.
On the information available, it appears his initial back complaint in 1978 was not caused by his work.
It also appears the need for his operation in October 1992 was not due to any incident at work.
The need for his operation in 1998 appears to have arisen due to aggravation of underlying changes in his lumbar spine occurred when he bent over to fix a cam belt.
The need for him to have six months off work from September 2002 does not appear to be work-related. He had the onset of back pain at home when he bent over to pick up a towel. This does not appear to be a work-related problem, and I do not think it can be attributed to his 1998 complaint and operation. It would appear to be an aggravation of underlying changes in his lumbar spine, which were present to 1998.
In my opinion, his employment with Rick Damelian is not a substantial contributing factor to his present alleged injury.
I do not think it would be sensible to return to work as a mechanic. I think the bending and lifting which would be required would cause him problems, and I do not think he could work in such a job.
In view of his continuing complaints his prognosis is guarded. However, I do not think on the information available that his current complaints can be attributed to his employment by Rick Damelian Pty. Limited.”
Dr Innes-Brown
Dr Innes-Brown, Orthopaedic Surgeon, provided his report dated 13 August 2003 at the request of the Appellant’s legal representatives.
Dr Innes-Brown’s report is detailed and comprehensive. In the text of the report, the following comments are made:
“The history and the findings disclose that this man has long standing lumbar spondylosis, a degenerative condition due to constitutional factors and not work-related.
The history discloses that in 1978 whilst he was still an apprentice he developed signs of a left sciatica which was most likely due to disc herniation at the L4/5 level. It has to be noted that disc herniation can occur even in young adolescents. His symptoms at that time improved despite chiropractic treatment which in my view is inappropriate where disc herniation is present.”
In terms of the 1995/96 incidents, Dr Innes-Brown said:
“His back pain settled and after a week he resumed his normal duties and it would seem that this incident was a simple musculoligamentous strain, all effects of which, including any transient aggravation of the underlying chronic pathology in his lumbar spine, resolved and his continuing symptoms were due to that underlying pathology.”
In relation to the 1998 incident, Dr Innes-Brown observed:
“One cannot exclude the possibility that the vigorous activity rotating the crankshaft of a car in April 1998 represented precipitating aggravation of the longstanding degenerative condition in his low back.”
In relation to the 2002 incident, Dr Innes-Brown said:
“… and x-rays and CT scan performed a few days later confirmed the longstanding degenerative changes in the lower thoracic and lumbar spine (thoracolumbar spondylosis) and obliteration of the fat shadows at L4/5, indicating the presence of epidural fibrosis, a complication of spinal surgery beyond the control of the surgeon. However, there was no evidence of any further recurrent disc protrusion in this CT but facet joint arthritis was again defined and prompted the injection of steroid and local anaesthetic into the L4/5 facet joint on the left side with amelioration of his symptoms.
The long history of low back pain with sciatic distribution is typical of slowly progressive spondylosis, a degenerative condition due to constitutional factors and unrelated to activity. The degenerative process includes weakening of the annular fibres of the intervertebral discs predisposing to disc herniation and sciatica.”
In relation to the 1998 incident, Dr Innes-Brown said, inter alia:
“However, the further severe recurrence of pain in April 1998 appears to have been precipitated by the activity at work so that he had a further laminectomy with a good result.”
In summary, Dr Innes-Brown stated:
“… this man is suffering from lumbar spondylosis and spondylosis is also evident in the lower extent of his thoracic spine. The condition brought him to a laminectomy in 1992 without any history of any precipitating injury, and again in 1998 where there is history of a precipitating aggravation in the course of his work, but a further laminectomy has remedied the recurrent disc protrusion associated with that incident, so that there is now no substantial contributing factor, which is work-related.
It is to be noted that during compression tests on the lumbar spine, it is the vertebral bodies themselves, which give way before any rupture of the disc occurs, unless the disc is already degenerate.
His condition at the moment is relatively static but the prognosis is for slow progression of the degenerative condition in his lumbar spine.”
Other documents
Other medical documents have been noted, including various WorkCover NSW Medical Certificates that have been referred to in evidence and medical certificates issued by Dr Smith, in relation to the necessity for Mr Romanas to take time off work because of his incapacity at various times.
Mayne Health
The report dated 1 October 2002 from Mayne Health concludes:
“CONCLUSION
This patient has apophyseal joint overgrowth at the L4/5 and L5/S1 levels with exit foraminal narrowing at the Lf/S1 level bilaterally. No disc bulge or spinal stenosis noted. Xrays show disc spacing narrowing at multiple levels between L1/L2 and L5/S1.”
DISCUSSION AND FINDINGS
Did the Arbitrator fail to comply with the requirements of section 355 of the 1998 Act?
The order made by me in Romanas on 22 December 2004 was as follows:
“The decision of the Arbitrator is revoked. The matter is remitted back to the Arbitrator concerned for determination afresh and preparation of written reasons for decision, in accordance with these reasons.”
The reasons for remitting the matter to the Arbitrator concerned are set out in Romanas. Without repeating the whole of my reasons for the decision, the following comments at paragraph 56, while not detailed, give an indication of the substance and thrust of those reasons:
“Following a close reading of the transcript of the proceedings before the Arbitrator and an examination of the evidence before him, it is difficult to appreciate that the Arbitrator resolved and made adequate findings in relation to all of the relevant and disputed material issues, particularly in relation to the medical evidence. Indeed, there is no indication that he has adequately addressed the submissions of the parties in relation to the relevant medical evidence before him and the inconsistencies raised in relation to that evidence.”
Again, at paragraphs 57 and 58 of my reasons, I said:
“57.There is no doubt that this is a difficult matter principally because of the complexities of, and the challenges to, the medical history involved, and the mass of detail, much of which is contentious. I am not satisfied that the Arbitrator has properly determined the application, because it is far from clear that all relevant issues have been resolved. It is not apparent from the reasons given in the ex tempore decision. In the circumstances, I find that the Arbitrator’s reasons for decision are inadequate, that this amounts to an error of law, and that the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his statutory duty to fairly and lawfully determine the matter. Arbitrators ought not to be discouraged from giving ex tempore decisions where it is appropriate, but inevitably, some disputes such as this, will require much greater and detailed consideration.
58.In the circumstances, I propose to revoke the decision of the Arbitrator and remit the matter back to the Arbitrator concerned to determine afresh and to provide written reasons. I will not proceed to make findings with regard to the grounds of appeal in relation to sections 4 and 9A of the 1987 Act, nor the grounds of appeal in relation to the alleged lack of evidence and findings allegedly made contrary to the evidence, as it is not clear from the transcript and the ex tempore reasons, whether these issues have been properly dealt with and what findings, to some extent at least, have in fact been made.”
The matter was duly remitted to the Arbitrator for determination afresh. All of the evidence that had been put by the parties was before the Arbitrator. It is clear from the transcript and other documents that the parties had availed themselves of the opportunity to exhaustively place all of the evidence before the Arbitrator, and make all of the submissions that they required him to take into account. Indeed, as I stated at paragraph 51 of my decision in Romanas, “In this matter, the Arbitrator stated that the parties had pressed him to give an ex tempore decision. He gave his decision at 6.15pm …”.
In the circumstances, the Arbitrator was simply required to determine the matter afresh on the evidence and submissions that were already before him, and to provide written reasons, “in accordance with [my] these reasons”. That was the extent and intent of my decision of 22 December 2004, with which the Arbitrator duly complied.
It follows, and I find, that the Arbitrator was not required to attempt again to use his best endeavours to bring the parties to the dispute to a settlement, pursuant to section 355 of the 1998 Act. The matter proceeded to arbitration before him on the first occasion because the dispute could not be resolved during the conciliation phase of the proceedings. While it seems that the parties are no closer to settlement now than they were on that occasion, the Arbitrator was not required to proceed through the whole process for a second time.
This ground of appeal is not made out.
Did the Arbitrator err in dealing with issues not remitted to him?
As stated, the Arbitrator was required to determine the matter afresh and to provide written reasons. The outstanding issues identified by me in Romanas were not exhaustive. It was for the Arbitrator to address the outstanding issues that were before him, and to determine the matter afresh, in accordance with my “reasons” of 22 December 2004.
The Appellant has not specified the particular issues that the Arbitrator allegedly dealt with but that were allegedly not remitted to him. Subject to the findings that I made in Romanas, the matter was remitted for determination afresh, in accordance with the reasons in my decision of 22 December 2004. In the absence of anything more specific from the Appellant, I find that this ground of appeal is not made out.
Were no issues remitted nor the matter referred, back to the Arbitrator?
The Appellant submits that nothing in the material provided to it by the Registrar indicates that the matter had actually been referred back to the Arbitrator. It also submits that no issues were remitted to the Arbitrator. Nevertheless, the matter was in fact referred to the Arbitrator. The Arbitrator duly determined the matter afresh and provided a written ‘Statement of Reasons for Decision’, in accordance with my decision of 22 December 2004.
This ground of appeal is not made out.
Was the Appellant denied procedural fairness in not being permitted to, or being provided with, an opportunity to make further submissions to the Arbitrator?
This issue is dealt with in paragraphs 34 and 35 of these reasons. For the reasons stated, I find that the Appellant was not denied procedural fairness on the basis claimed, and that this ground is not made out.
Did the Arbitrator lack jurisdiction to make the determination of 1 March 2005?
Again, I refer to the contents of paragraphs 34 and 35 of these reasons. I find that the Arbitrator complied with the order in my decision of 22 December 2004 by determining the matter afresh on the evidence and submissions that were before him, and by providing a written statement of reasons for decision. He was lawfully required and had the jurisdiction, to do so.
This ground of appeal is not made out.
Did the Arbitrator “convey a reasonable apprehension of a lack of objectivity and fairness … such as constitutes an error of law” by addressing in detail matters which were not referred back to him? Should the Arbitrator have disqualified himself?
I refer again to paragraphs 34 and 35, and to paragraphs 38 and 39 of these reasons. I have already found that the Arbitrator complied with the order in my decision of 22 December 2004. In the absence of any specific particulars from the Appellant, I find that there is no evidence before me to substantiate the assertion that the Arbitrator lacked objectivity and fairness on the ground stated.
The Arbitrator was under a legal obligation to comply with my decision of 22 December 2004. I can find no reason, or basis put by the Appellant, for the Arbitrator to have disqualified himself from complying with the order made in that decision, to determine the matter afresh.
This ground of appeal fails.
Did the Arbitrator err in his statement of the documents before him, in paragraph 10 of his Reasons?
As the Appellant essentially points out, the Arbitrator has not provided a detailed and comprehensive list of the documents that were before him and which are now before me in this appeal. However, there is no doubt that all of the relevant documents were in fact before the Arbitrator when he considered and determined the matter afresh. The brevity of, or any inadequacy in, the list of documents in paragraph 10 does not, for any practical purpose, impact upon the correctness or otherwise of the Arbitrator’s findings and decision. A reading of his Reasons confirms that he reviewed and considered the relevant materials. Consequently, any error in relation to the description of documents in paragraph 10 of the Arbitrator’s Reasons does not amount to an error of fact, law or discretion that is fatal to his decision.
Was there a lack of impartiality on the part of the Arbitrator?
The Appellant makes reference to various comments and findings of the Arbitrator and submits that this “evinces a lack of impartiality on behalf of the Arbitrator.” He refers in particular to the comment at paragraph 16 of the Arbitrator’s Reasons and to other comments at paragraph 16 b, e, l and u “amongst others”. The specific comment to which the Appellant take exception at paragraph 16 reads in part, “Having had the opportunity to also review the evidence, it is clear that some of the submissions made on behalf of the Respondent [the Appellant in this appeal] are open to the suggestion that they are misleading.” The remaining comments in effect, question the basis upon which certain submissions were made by the Appellant, having regard to the evidence.
The Arbitrator made these comments, whether correct or otherwise, after hearing and considering all of the evidence put before him by both parties, and after hearing and/or considering all written and oral submissions that were made by them. The comments made, notwithstanding the way in which the Arbitrator expressed them, are by way of conclusions reached and observations made, upon a due consideration of everything that had been put before him. The use of firm and direct expression in stating conclusions and giving reasons for them, does not of itself substantiate a claim of lack of impartiality. The comments related to the merits of submissions made by the Appellant’s legal representative, in light of the evidence, and did not infer that the Arbitrator had entertained any preconceived view of the dispute before him. Moreover, at no point during or after the conclusion of proceedings before the Arbitrator, or at any time until this second appeal was lodged, did either party make any suggestion of bias, on the part of the Arbitrator. Clearly, the Arbitrator afforded the parties a fair hearing and in my view, there is nothing before me to indicate a lack of impartiality on his part.
This ground of appeal is not made out.
Issues determined on appeal in Romanas on 22 December 2004 and the remaining issues to be determined in this appeal
In Romanas I found that the Arbitrator did not err in admitting the report of Dr Cairns into evidence, included as it was, in the history set out in the treating doctor’s report. I found that the ground of appeal was not made out.
Again on appeal in Romanas the Appellant submitted that procedural fairness was denied because the Arbitrator would not permit cross-examination or questioning of the Respondent Worker; that the Arbitrator did not have proper regard to the objections and submissions made by the Appellant, and that the Arbitrator constrained the Appellant in making proper or complete submissions. I found that the Arbitrator did give proper consideration to the requests made by the Appellant and that there was no denial of procedural fairness in refusing to allow the line of questioning of the Respondent Worker, as outlined to the Arbitrator by the Appellant. I found that this ground of appeal also, was not made out.
The Arbitrator was not required to address these issues in order to comply with my decision in Romanas, of 22 December 2004. Moreover, having determined each of these issues in Romanas I am neither required nor able, to determine these same issues again.
The Appellant further challenged the Arbitrator’s decision in Romanas on the basis of inadequacy of reasons and Arbitrator’s finding on credit.
In dealing with the Arbitrator’s finding as to Mr Romanas’ credit I said at paragraph 49 of my reasons on appeal in Romanas:
“The Arbitrator found no difficulty with the credit of the Respondent Worker, ‘who, as his legal representative has suggested, is to be commended for getting back to work and working full time.’ Mr Romanas did not give oral evidence in the proceedings before the Arbitrator and it is somewhat difficult to know how the Arbitrator arrived at that view of his credit. However, Mr. Romanas’ credit is not a critical issue upon which the dispute turns, and the Appellant Employer has not claimed that it is. In the circumstances, it is not appropriate or necessary for me to interfere with that finding (Abalos v Australian Postal Commission (1990) 171 CLR 167).”
Having determined that issue on appeal in Romanas, I am neither required nor able, to determine the same issue again.
I am now required to address the remaining grounds of and issues in, the instant appeal. They are:
·Whether the Arbitrator made errors of law, fact or discretion in arriving at his decision, including whether he made findings not based on the evidence or that were contrary to the evidence.
·Whether the Arbitrator erred in his decision in relation to the substantive issues that remain outstanding for the purposes of this appeal, and which were in issue but not determined in Romanas, the initial appeal, on 22 December 2004. These issues relate to sections 4 and 9A of the 1987 Act and are again in issue in accordance with the Appellant’s grounds of appeal in the instant matter. The order for payment of medical expenses pursuant to section 60 of the 1987 Act is also in issue.
I refer again to paragraph 58 of my reasons in Romanas, set out at paragraph 33, above. For the sake of convenience, it is repeated here:
“In the circumstances, I propose to revoke the decision of the Arbitrator and remit the matter back to the Arbitrator concerned to determine afresh and to provide written reasons. I will not proceed to make findings with regard to the grounds of appeal in relation to sections 4 and 9A of the 1987 Act, nor the grounds of appeal in relation to the alleged lack of evidence and findings allegedly made contrary to the evidence, as it is not clear from the transcript and the ex tempore reasons, whether these issues have been properly dealt with and what findings, to some extent at least, have in fact been made.”
I am not required to revisit the Arbitrator’s ex tempore decision, having determined the appeal against that decision in Romanas. Subject to making substantive findings in Romanas in relation to some grounds of appeal, I revoked the Arbitrator’s decision on the basis of the inadequacy of his reasons for decision. Accordingly, I am now required to consider the grounds of appeal against the Arbitrator’s written decision of 1 March 2005, which is the only decision of the Arbitrator that remains on foot in the dispute between the parties.
Did Mr Romanas sustain an injury arising out of or in the course of his employment? (section 4 of the 1987 Act)
Section 4 of the 1987 Act provides:
“4Definition of “injury” (cf former s 6(1))
In this Act:
Injury:
(a)means personal injury arising out of or in the course of employment,
(b)includes:
(i)a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(c)…”.
As outlined at paragraph 8 of Romanas, Mr Romanas lodged an ‘Application to Resolve a Dispute’ in the Commission in relation to back injury on 8 February 1995, 26 July 1996 and 14 April 1998. The disputed claim is for weekly payments of compensation for the period 21 October 2002 to 12 May 2003. Also sought was an “Award pursuant to section 60 from 23 September 2002 in respect of treatment for symptoms from 23 September 2002 to date and continuing.” The treatment sought was stated as “General Practitioner, pharmaceutical, physiotherapy and general section 60 award.”
Before proceeding further, there are issues relating to apparent and/or alleged work-related injuries in 1992 and 2002 that need to be addressed.
.
The Appellant submits specifically that the Arbitrator erred in paragraph 16h of his ‘Statement of Reasons for Decision’ (‘Reasons’) in purporting to “consider” that some condition in 1992 was work related. Mr Romanas made no claim for workers compensation in relation to the 1992 incident because, according to his statement of 24 July 1998, he “could not pinpoint the exact cause of my back problem”.
The Arbitrator stated, “Apart from that, Dr Harrison regards 1992 as work related. Although I have not needed to make a finding on that issue I am inclined to accept that this is the case.” Notwithstanding this observation, having made no finding on the issue, it forms no part of the Arbitrator’s substantive decision that is the subject of this appeal. This is reflected in his subsequent discussions as set out in his Reasons, and in particular his statement at paragraph 16j. Moreover, while the Arbitrator “notes” at paragraph 16e of his Reasons, that Dr Roarty had formed the view that “1992 was ‘work related’.”, he states, “It is not necessary for me to form an opinion as to whether it is consistent with his not having claimed workers compensation for 1992.” Again, at paragraph 16i he says, “I am of the view that the re-occurrence of pathology demonstrating something similar (or close to) the 1992 pathology at a later date must have been caused by later event(s).” Whether this conclusion is correct or not, the Arbitrator has not made findings that the 1992 incident was work related, in relation to this particular dispute. Moreover, the Arbitrator was satisfied that Mr Romanas made a full recovery from the 1992 injury for which no workers compensation claim was made. Accordingly, I find that the Arbitrator has not erred in this regard.
The Appellant further submits that the Arbitrator has identified various injuries including an injury that occurred in 2002 that was not included in the ‘Application to Resolve a Dispute’ that was before him. He refers to paragraph 3 in the Arbitrator’s Reasons, where he states:
“The Applicant claims to have suffered back pain as a result of various injuries in 1995, 1996, 1998 and 2002, the details of which are set out in the application and/or its annexures.”
The dates of injury alleged at page 3 of the ‘Application to Resolve a Dispute’ that was before the Arbitrator, are stated as 8 February 1995, 26 July 1996 and 14 April 1998.
A letter dated 6 November 2002 from the Respondent Worker’s solicitor to the Insurance Company, that was annexed to and filed with the Application, states relevantly:
“We confirm that our client instructs us that he has suffered a recurrence of severe back pain on or about 23 September 2002 and has been certified unfit for work since that date.”
Later in the same document, this is clarified by the following statements:
“It would appear that this is a natural progression of his original injury for which you have twice accepted liability for surgery.
There were injuries in 1995, 1997 [sic] and 1998 and he has undergone back surgery twice already.
We refer you to the WorkCover Certificate of Dr Macaroonas [sic] dated 3 October 2002 which states that his employment is a substantial contributing factor to the injury and refers back to the previous work injuries in 1995 and 1997 [sic].”
This is supported by medical evidence, in particular the report of 30 October 2003 by Dr Harrison who opined that the incident in September 2002 was symptomatic of the injuries in 1995, 1996 and 1998.
The Arbitrator relates the incident in 2002 directly to the injury that was found to have occurred in 1998. He said at paragraph 16jj of his Reasons:
“I am persuaded in short, that an injury did occur in 1998. It was substantially caused by the employment and that when it re-occurred in 2002 after a lapse in time it was part of a process which is described by Dr. Harrison in his report of the 30th October, 2003, which relates to three of the injuries suffered by the applicant during the course of his employment and which occurred in 1995, 1996 and 1998.”
Leaving aside for the moment, the question as to whether a work-related injury was sustained in 1998 or at all, it is my conclusion that the Arbitrator regards the incident in 2002 as a symptomatic manifestation (or recurrence) of that alleged injury, and not a new or further injury, notwithstanding his use of the word “injury” in the preliminary and other paragraphs of his Reasons. The Arbitrator has expressed his various references to the 2002 incident loosely and inconsistently, thereby it seems, giving rise in part, to this ground of appeal. However, he states relevantly, at paragraph 16 l:
“Apart from overgrowth the 2002 radiology simply records ongoing degeneration as opposed to a clear indication of a new unrelated injury.”
Notwithstanding the looseness of and inconsistency in, the Arbitrator’s language, I find that he has made no error of substance in relation to this issue.
The Appellant has made submissions on some of the detail in the Arbitrator’s Reasons, both in terms of substance and expression. This review on appeal is not in the nature of a rehearing (see Romanas paragraph 34). While it is not necessary to comb through the fine detail of every submission and comment made, it is necessary to consider the evidence that was before the Arbitrator.
The power of a Presidential Member to revoke the decision pursuant to section 353(7) of the 1998 Act, and to substitute a new decision in its place, or remit to the Arbitrator concerned, or remit to another Arbitrator for determination, is exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172).
Mr Romanas refers in his statement, to three other incidents, the first in 1995, the second is obviously the injury claimed to have occurred in 1996, and the third in 1998. In his statement he says in relation to the 1998 incident, “Liability was accepted from Commercial Union and Dr. Pell performed a second laminectomy on me at St. Vincent’s Private Hospital on 8 May, 1998.” From this and for the reasons stated by the Arbitrator at paragraph 16d of his Reasons, it is clear that the Respondent Worker himself did, in his view, “connect his problems to a work injury”, contrary to the submission of the Appellant.
The Appellant submits, “there is real doubt about various aspects of the accidents claimed by the Applicant [the Respondent Worker in this appeal] to have occurred in 1995, 1996 and 1998.
The medical evidence has been canvassed in some detail in submissions and in the Arbitrator’s Reasons, and is set out in paragraphs 41 – 79, above. Essentially, Dr Macarounas (2003), Dr Roarty (1995 &1999), Dr Pell (1998), Dr Harrison (2003) and Dr Cairns (1999) all support the claim of compensable work-injury made by Mr Romanas while employed by the Appellant. Dr Edwards (2003) and Dr Innes-Brown (2003) do not.
Dr Macarounas, Mr Romanas’ treating doctor, is closely familiar with his history, injuries and condition. He expressed the view that Mr Romanas suffered separate injuries in 1995 and 1998 at work. He considers that the manifestation of injury that occurred at home in 2002 is symptomatic and derives from the injury sustained by Mr. Romanas at work in 1998, from which he never recovered, while in the employ of the Appellant. His evidence is detailed and persuasive, particularly when viewed against his explanation about the “mechanical disruption to the whole L4/5 mechanism due to both surgeries in 1992 and 1998 …” and his comments about ongoing difficulties following the 1998 injury, supported by the prognosis of Dr Cairns.
Dr Roarty gives an account of Mr Romanas’ medical history before the alleged injury in 1995. He opines that Mr Romanas achieved a full recovery from the non-compensable 1992 injury. He states categorically that Mr Romanas suffered an injury at work on 14 April 1998 while in the employ of the Appellant, and gives details of the injury sustained.
Dr Pell’s evidence is consistent with the content of the reports of Dr Macarounas and Dr Roarty and details the operation that Mr Romanas underwent on 8 May 1998. Dr Pell also regards the injury sustained on 14 April 1998 as a work-related injury.
Dr Harrison’s evidence is substantially consistent with the reports of Drs Macarounas, Roarty and Pell. He refers in particular to the injuries sustained by Mr Romanas in 1995, 1996 and 1998. He describes Mr Romanas’ work-related injury in 1998 as a “frank and disabling injury”, notwithstanding that he also attributes some part of Mr Romanas’ condition to the 1992 incident, for which compensation was not claimed. He expresses the view that notwithstanding other issues, Mr Romanas’ employment is a substantial contributing factor to “his current condition”.
Dr Cairns produced his report at the request of the Insurer. He described Mr Romanas’ medical condition and injuries in much the same way as described in previous medical reports. He regards Mr Romanas as a” credible historian” and attributes his injury and disability directly to the incident at work on or about 14 April 1998, and as such, opined that his employment constitutes a substantial contributing factor in the development of his injury and his ongoing disability.
Dr Edwards took a different view. In his report of 30 July 2003 he said that the need for Mr Romanas’ 1998 operation appears to have arisen due to aggravation of underlying changes in his lumbar spine when he bent over to fix a “cam belt”. He does not consider that the 2002 incident is related to the 1998 complaint and operation. He opines that Mr Romanas’ employment is not a substantial contributing factor to the “present alleged injury”.
Dr Innes-Brown substantially agrees with Dr Edwards. In his report of 13 August 2003 he observes that Mr Romanas had a long-standing degenerative condition due to constitutional factors which are not work-related. He says however, that he could not exclude the possibility that the vigorous activity of rotating a crankshaft could have precipitated aggravation of this long-standing condition. Relevantly, he says that the further laminectomy carried out following the 1998 incident, remedied Mr Romanas’ problem so that there is now no substantial contributing factor that is work-related.
Dr Harrison disagrees with the views of Dr Edwards and Dr Innes-Brown. He points out that Mr Romanas was able enough to enter into employment with the Appellant in the first place, and “irrespective of the condition of his back when he started work, … [it] did not preclude him working effectively as a mechanic …”.
I agree with the Arbitrator that Dr Harrison’s evidence does not support the Appellant’s position that Mr Romanas’ condition is not related to his employment. Substantially, the opposite is the case.
Moreover, the medical evidence is substantially, but not exclusively, that following the 1998 injury, there would be continuing pain, that is to say, the 1998 surgery did not alleviate his incapacity arising out of the injury. This is supported by the fact that Mr Romanas did not return to his pre-injury duties as a mechanic, but returned to work on light duties.
The Arbitrator has canvassed the medical evidence in detail in his Reasons and prefers the evidence of Drs Harrison, Macarounas, Roarty, Pell and Cairns to that of Drs Edwards and Innes-Brown. The Arbitrator was required to take all of this evidence into account and on the basis of that evidence and the weight of the evidence, arrive at a conclusion in relation thereto. Having considered all of the evidence quite closely, as did the Arbitrator, I am of the view that it strongly supports Mr Romanas’ case, notwithstanding the dissenting views of Dr Edwards and Dr Innes-Brown. The critical question is whether Mr Romanas was simply aggravating a pre-existing, non work-related condition or whether he suffered frank work-related injuries in 1995, 1996 and 1998, as claimed. Having regard to the evidence and the weight of the evidence, I find that the Arbitrator was entitled to come to the view that Mr Romanas did suffer these injuries as claimed, and that the 2002 incident, was a direct manifestation of the 1998 injury from which he had not recovered.
The evidence in support of Mr Romanas, other than that of Dr Cairns who was requested by the Insurer to provide a medical report, came from his treating doctor and other specialists who, in the main, were familiar with Mr Romanas’ condition. They each had dealings with him and his injuries, to a greater or lesser extent, over a considerable period of time. In aggregate, it is a substantial, detailed and largely consistent body of evidence. This is in my view, to be preferred to the evidence of Dr Edwards and Dr Innes-Brown, whose reports were provided following reviews conducted in 2003. Neither disputes Mr Romanas’ medical condition.
I have outlined the evidence in some detail in these Reasons. The analysis of it by the Arbitrator stands up to scrutiny if not in precise detail, then in terms of substance, relevant findings and his ultimate conclusion.
I find that the Arbitrator did not err in finding that Mr Romanas suffered personal injury arising out of, or in the course of his employment, as claimed. The fact of employment is not disputed.
This ground of appeal is not made out.
Was employment a substantial contributing factor to the injury? (Section 9A of the 1987 Act).
There is no dispute as to the history of events in this matter. The evidence supports Mr Romanas’ claim that the injuries sustained by him occurred at work in his employment with the Appellant. The injuries clearly had employment characteristics about them. Having regard to the evidence, and having accepted the medical evidence of Drs Macarounas, Pell, Roarty, Cairns and Harrison, the Arbitrator reasonably came to the conclusion that employment was in fact, a substantial contributing factor to the injury.
This question turns upon the acceptance or otherwise of the proposition put by the Appellant that Mr Romanas’ condition derives from a non compensable injury or condition. Once it is found that this is not the case, it follows that employment was a substantial contributing factor, having regard to the undisputed circumstances surrounding each of the injuries and the evidence. While the Appellant takes issue with some aspects of the Arbitrator’s Reasons, the evidence on this issue is not addressed to the extent that it is demonstrated that the Arbitrator is in error.
The medical evidence supports Mr Romanas’ submission that employment with the Appellant was a substantial contributing factor and the 2002 “incident” is the manifestation and extension of the pathology arising out of the 1998 injury, at least.
On a consideration of the provisions of section 9A of the 1987 Act, and on the evidence before him, I find that the Arbitrator was entitled to arrive at the conclusion that employment was a substantial contributing factor to Mr Romanas’ injury.
This ground of appeal is not made out.
Section 60 of the 1987 Act expenses
Again, there was adequate evidence in support of this claim, before the Arbitrator. It follows from the findings in relation to injury and employment being a substantial contributing factor, and having regard to the medical evidence, that the Arbitrator was not in error in relation to this aspect of his decision in making the award in favour of Mr Romanas. I find accordingly.
This ground of appeal is not made out.
Did the Arbitrator make findings in support of his decision that were not based on evidence or that were contrary to the evidence?
Most of the Appellant’s objections relate to the issue of causation of injury. This issue has been dealt with above. On that basis, I can find no error of substance made by the Arbitrator that is so inconsistent with the evidence and the weight of the evidence, such that it is fatal to his decision. His findings are substantially supported by the evidence before him, and the weight of that evidence.
Objection is now raised as to the weekly rate claimed by and awarded to, Mr Romanas, pursuant to section 38 of the 1987 Act. As the Arbitrator correctly states, no evidence was brought, nor objection raised before him, to refute the claimed amount. That being the case, the Arbitrator was entitled to make his decision on what was put before him and that was in his view, uncontested.
This ground of appeal is not made out.
DECISION
The Arbitrator has made no error of law, fact or discretion that would lead to the revocation of his decision. The appeal is not successful. The decision of the Arbitrator is confirmed.
COSTS
The Appellant is ordered to pay the costs of the appeal, as agreed or assessed.
Gary Byron
Deputy President
20 December 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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