Scalabrini Village Limited v Tufuga
[2005] NSWWCCPD 124
•1 November 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Scalabrini Village Limited v Tufuga [2005] NSW WCC PD 124
APPELLANT: Scalabrini Village Limited
RESPONDENT: Tiatuau Tufuga
INSURER:Catholic Church Insurance Ltd
FILE NUMBER: WCC21238-2004
DATE OF ARBITRATOR’S DECISION: 28 May 2005
DATE OF APPEAL DECISION: 1 November 2005
SUBJECT MATTER OF DECISION: Section 4, Workers Compensation Act 1987, ‘injury’, multiple injuries, referral to Approved Medical Specialist for assessment of permanent impairment.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the papers.
REPRESENTATION: Appellant: Michael Murray
Respondent: Beilby Poulden Costello
Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 27 May 2005, is revoked and the following decision is made in its place:
1. The medical dispute is to be referred to an Approved Medical Specialist for assessment pursuant to Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 in relation to the following injuries:
1.On 25 November 2002 (around 3pm) injury to the lower back that occurred when Ms Tufuga was “bending down” and “picking up a resident”.
2.On 25 November 2002 (around 6.30 pm) injury to the lower back that occurred when Ms Tufuga was “pushing a lifter”.
3.On 1 April 2003, at “1630 hours” injury to the lower back as a result of Ms Tufuga “transferring a resident from the floor”.
4.On 26 November 2003 injury to the lower back when Ms Tufuga fell over on the bus on a journey to work.
5.On 26 November 2003 injury to the right ankle when Ms Tufuga twisted and fell as she alighted the bus on a journey to work.
2. No order as to costs.
BACKGROUND TO THE APPEAL
Tiatuau Tufuga started work as a full time assistant nurse with Scalabrini Village Limited in October 2001. Her duties included attending to patient’s personal care, moving and lifting patients if needed and accompanying patients on bus transport. She claims to have suffered an injury, or injuries, to her back and right ankle, arising out of or in the course of her employment. She has made a claim for lump sum compensation for permanent impairment, which her employer has denied.
Catholic Church Insurance Ltd is the relevant workers compensation insurer. It acted for, and on behalf of, the employer in the Commission proceedings. Ms Tufuga filed an ‘Application to Resolve a Dispute’ in the Commission on 31 December 2004.
Ms Tufuga’s dispute went before a Commission Arbitrator on 11 March 2005. Prior to referral of the ‘medical dispute’ to an Approved Medical Specialist (‘AMS’) the Arbitrator determined the issue of what ‘injury’ or ‘injuries’ the AMS was to be asked to assess. He found that Ms Tufuga suffered “one injury to the low back as a result of a number of incidents and one injury to the right ankle”.
The Insurer now appeals that decision arguing that the Arbitrator made an error of law. The Insurer seeks to have the decision revoked and a new decision; that Ms Tufuga suffered from five separate injuries between September 2002 and November 2003, made in its place.
Ms Tufuga argues the Arbitrator’s decision is correct and should be confirmed.
Both parties have made extensive written submissions in the appeal. I also have before me the evidence and submissions that were before the Arbitrator. The parties are in agreement that the matter can be determined on the papers. 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 (pursuant to section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)).
ISSUE IN DISPUTE
There is only one issue in dispute in the appeal namely: Was the Arbitrator wrong to find that Ms Tufuga suffered only one injury to her lower back and one injury to her ankle?
JURISDICTION
I am satisfied that:
·The appeal is filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act).
·The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act; Fletchers International Exports Pty Limited v Regan [2004] NSW WCC PD 7)),
·No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5), and
·No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).
Leave to appeal is granted.
WAS THE ARBITRATOR WRONG TO FIND THAT MS TUFUGA SUFFERED ONLY ONE INJURY?
The Evidence
Ms Tufuga filed a statement of her evidence, dated 23 December 2004, with her application to the Commission. It sets out relevant facts, which mostly are not in dispute. In summary, Ms Tufuga states that:
· From February 2001 until September 2002 she worked as a nursing assistant for Clover Lea Nursing Home in Clovelly, from 6.30 am to 2.30 pm
· She also worked as a nursing assistant for Scalabrini Village (also a nursing home) on Mondays - Wednesdays from 3pm to 6pm from October 2001 until February 2004.
· On 6 September 2002, she was working at Scalabrini Village. At approximately 3.20 pm she was assisting a co-worker to lift a patient, when she “felt a clicking pain” in her back. She reported the incident to a co-worker but continued her duties.
· Later the same day, 6 September 2002, at approximately 6.00pm she was transferring a heavy patient from a chair into bed, when she “felt a crack” in her back. She finished her shift, went home and rested, albeit suffering from back pain.
· On 7 September she completed an incident report in relation to both the 3.20 pm and 6.00pm incidents. She lodged a Compensation Claim form for this injury on 25 November 2002. She was unable to go to work at the Clover Lea Nursing Home in Clovelly. She attended her General Practitioner, Dr Emmanuel, who certified her unfit for work for two weeks. On Dr Emmanuel’s recommendation she has not since returned to work at Clover Lea.
· She saw Dr Mazzaferro, on her employer’s behalf, who certified her unfit for work for two weeks.
· She then participated in a return to work program. She states that she did not consider that she could resume ‘normal duties’ but that ‘light duties’ were not made available to her.
· On 1 April 2003, at approximately 4.30 pm Ms Tufuga was assisting in moving a heavy patient when she felt, and reported, “severe pain” in her back. She was “forced to twist and turn the chair into position in this tight position”.
· Later that same day, at approximately, 5.30 pm, she was again assisting in the transfer of patients and “felt a severe increase of pain” in her back. She continued to work. She lodged a Compensation Claim form for this injury on 16 June 2003.
· On 26 November 2003 Ms Tufuga was travelling on a bus to work when she fell and felt pain in her back. Shortly thereafter, as she alighted the bus she fell and twisted her ankle. She reported this incident to her employer on 27 November 2003. She consulted Dr Emmanuel, who certified her unfit for work for two weeks, after which she returned to work on light duties. She lodged a Compensation Claim Form for this injury on 12 January 2004
· She continued to work until February 2004, when Scalabrini Village denied liability for her claim and required her to return to normal duties.
· On the advice of Dr Emmanuel, she has continued to look for suitable ‘light’ employment, but has been unsuccessful.
Ms Tufuga also filed medical reports from Dr Emmanuel, Dr Giblin, Orthopaedic Surgeon, and Dr Davis, Injury Management Consultant, Occupational Medicine, with her application to the Commission. On the basis of these reports Ms Tufuga claims 13% whole person impairment and $35,000. in compensation for pain and suffering.
The Insurer purported to rely upon the medical reports of Dr Meakin, Orthopaedic Surgeon, Dr Youssef, Rheumatologist, Dr Hitchen, Orthopaedic Surgeon, Dr David Wilcox, Surgeon and Dr Hughes, Orthopaedic Surgeon. The Arbitrator required that the Insurer nominate only one ‘Orthopaedic Surgeon’ in accordance with the requirements of Part 10 of the Workers Compensation Regulation 2003, which restricts the medical evidence which may be admitted in Commission proceedings and which may be disclosed to an AMS (see also Fishburn v Integral Energy Australia [2005] NSW WCC PD 53). The Insurer nominated Dr Hitchen as the Orthopaedic Surgeon upon whom it was relying and it was thus his report that was to be referred to the AMS.
The Arbitrator’s Reasoning
The Arbitrator gave written reasons for his decision. That part of the reasons which deals with the issue under appeal, namely; was there one or more injuries, is as follows, (at paragraphs 23-27):
“23Here, all injuries and incidents occurred under the new regime, that is after 1 January 2002. If I accept for argument purposes that there was as contended by the Respondent, five separate incidents, nonetheless four of these relate to the same injured body part, namely the low back and the fifth incident is a direct injury to the lower right leg, separately assessed by Dr Giblin.
24.It strikes me as nonsensical to require four incidents in respect of the same body part to be assessed and re-assessed on a whole person impairment regime. If I assume for present purposes that Dr Giblin’s findings in his report of 24 May 2004 are correct (which may be confirmed or realigned if and where the matter proceeds to AMS examination), then the Applicant has 5% WPI-DREII re lumbar spine plus 3% re affect on activities of daily living and a separate 3% for right lower extremity, giving a total combined WPI of 11%. I note in passing, Dr Giblin set out in one column the dates of injury which appear to total three. . . .
25.Having for this argument accepted Dr Giblin’s findings, I pause to consider what is the likely effect, if as the Respondent contends, Dr Giblin was obliged to separately assess the three (as he has specified) or five (as the Respondent contends) separate injuries to the same body part. I believe the inevitable consequence of this exercise would be to reduce the whole person impairment to a negligible figure, that is a series of DREI-0% WPI findings. This would defeat the beneficial intention of the legislation and inevitably lead to increased technical and procedural obligations, the very matters that the Act was designed to obviate.
26.. . .
27.Whether there were 3 or 5 separate incidents, I find that there was one injury to the low back as a result of a number of incidents-see NSW Police Service v Hughes [1997] 15 NSW CCR 488. For that reason, I do not consider that Maricic operates to preclude me from the course that I propose. Similarly as I have found one distinct loss rather than multiple losses- see Glebe Rowing Club Pty Ltd v Pride SCA (NSW) (unreported)- 40759/92 is thereby distinguishable.”
The reference to “Maricic” is to an earlier Commission decision of Arbitrator McDonald, which related to the correct assessment for injuries that occurred pre and post 1 January 2002.
The Arbitrator, later in the reasons, states that the “material put before me by the Respondent in its Submissions dated 24 March 2005 is persuasive to the extent that I am satisfied that there was in truth, five separate incidents, two on 6 September 2002, one on 1 April 2003 and two on 29 November 2003” (at paragraph 31 of the reasons). The Arbitrator finds (at paragraph 36) that “there is but one injury to the lower back as a result of a number of incidents and one injury to the right ankle”.
The Insurer’s Submissions on Appeal
The Appellant Insurer has submitted that the Arbitrator’s finding that only one injury resulted from five incidents is “both incorrect and premature”. It argues that, having found “five separate incidents” it was not open to the Arbitrator to find there was but one injury. Instead, the Arbitrator should have found there were “five separate injuries, four to the worker’s back and one injury to the worker’s right leg/ankle”. It was incumbent upon the Arbitrator to refer these five injuries to the AMS with a request for assessment of the relevant matters in section 326 (1) (a) to (e) of the 1998 Act.
The Insurer argues that the Arbitrator “misconceived his role and the law” in that he purported to determine loss flowing from the injury, rather than determining liability and referring the assessment of “the degree of permanent impairment of the worker as a result of the injury” to the AMS. The Insurer argues the Arbitrator has confused “injury” with “loss”.
The Insurer submits that following the issue of the Medical Assessment Certificate by the AMS, the Arbitrator will have a further role in the determination of any entitlement under section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). The Insurer argues that the Arbitrator has misapplied the relevant authorities and confused the determination of “injury” and “loss”.
The Insurer has relied upon a number of authorities in support its submissions (Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; Pickles v Staples Waste Removals Pty Ltd [2000] NSWCC 56; NSW Police Service & Anor v Hughes & Anor No 40911/96 (5 December 1997) per Cole JA.).
The Insurer submits that “[I]n any event the arbitrator has not actually determined which “injury” out of the incidents is “but one injury”.
The Insurer argues that the Arbitrator should have, on the facts, found that Ms Tufuga suffered five injuries namely; two on 6 September 2002, at 3pm and 6.30 pm; one on 1 April 2003, and two on 26 November 2003. It submits that the matter should be referred to the AMS on this basis.
Ms Tufuga’s Submissions on Appeal
Ms Tufuga argues that there were in fact five separate ‘incidents’, which give rise to her injury and that the Arbitrator’s decision is therefore correct. I note that this in her application to the Commission Ms Tufuga identified three dates of injury; 6 September 2002-to her back, 1 April 2003- to her back, and 26 November 2003- to her back and right ankle.
Ms Tufuga submits that the law allows there to be a “single loss (impairment to the back) resulting from more than one injury”. She argues that:
“. . .It is incumbent upon the AMS to assess a whole person impairment assessment in respect of the back including all four incidents and separately a whole person assessment in respect of the one injury to the right leg.
3. . . . . the whole person impairment assessment for the back and the whole person impairment for the right leg cannot be aggregated for the purposes of section 67.
Clearly however the “ single loss to the back resulting from more than one injury” can be combined and as the Arbitrator has pointed out if this was not done it would defeat the beneficial intention legislation and inevitably lead to increased technical and procedural obligation” (sic).
The Relevant Law
“Injury”
“Injury” is defined in section 4 of the 1987 Act as follows:
“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) . . . . “
A “personal injury” may be received on a journey to and from the worker’s place of employment (section 10 of the 1987 Act).
Having established that a claimant is a ‘worker’ pursuant to the 1987 Act the next step is to determine whether or not he or she has suffered an ‘injury’.
Section 4 must be read together with section 9A, which provides that the workers employment must have been a “substantial contributing factor” to that injury. The application of section 9A has not been raised as an issue in this appeal.
The determination of whether a worker has suffered an ‘injury’, as it is defined in section 4, of the 1987 Act is a matter of fact and the application of the correct law in the instant case. It will be for the Arbitrator to first make findings of fact of what occurred, on the evidence, and then to apply the law to those facts.
Lump Sum Compensation
On and from 1 January 2002 the law in relation to the assessment of lump sum compensation significantly changed. Sections 65, 66 and 67 of the 1987 Act were, along with other provisions of the 1987 Act, amended to give effect to these changes. Significantly, the concept of “loss of use” was removed from the current law.
It is worth setting out the current provisions, which, in part, are as follows:
“65Determination of degree of permanent impairment
(1) For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.
(2) If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.
Note. The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.
(3) If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.
(4) The Commission may, at any stage in proceedings on a claim for permanent impairment compensation or pain and suffering compensation, refer the matter for assessment of the degree of permanent impairment by an approved medical specialist.
66Entitlement to compensation for permanent impairment
(1) A worker who receives an injury that results in permanent impairment is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
(2) . . . . .
67Compensation for pain and suffering
(1) A worker who receives an injury that results in a degree of permanent impairment of 10% or more is entitled to receive from the worker’s employer as compensation for pain and suffering resulting from the permanent impairment an amount not exceeding $50,000. Pain and suffering compensation is in addition to any other compensation under this Act.
Note. Section 65A provides that pain and suffering compensation for permanent impairment arising from psychological injury is not payable unless the injury is a primary psychological injury (as defined in that section) and the degree of permanent impairment arising from the injury is 15% or more.
(1A)(Repealed)
(2) Because there is a distinction between injury and impairment resulting from an injury (and compensation is payable under this section only for pain and suffering resulting from impairment), the pain and suffering for which compensation is payable does not include pain and suffering that results from the injury but not from the impairment.
(3) The maximum amount of compensation under this section is payable only in a most extreme case and the amount payable in any other case shall be reasonably proportionate to that maximum amount having regard to the degree and duration of pain and suffering and the severity of the permanent impairment.
(3A)(Repealed)
(4) The amount of compensation payable under this section in any particular case shall, in default of agreement, be determined by the Commission.
(4A)(Repealed)
(5) . . . . .
Assessment of Permanent Impairment
Part 7 of Chapter 7 of the 1998 Act provides for ‘medical assessment’ in relation to a dispute about a claim for workers compensation. ‘Approved Medical Specialist’ (‘AMS’) and ‘medical dispute’ are defined (section 319 of the 1998 Act).
Where a dispute before the Commission is a ‘medical dispute’ the Commission or the Registrar may refer it to an AMS for assessment (section 321 of the 1998 Act) of the 1998 Act. A dispute about permanent impairment must be referred to an AMS for assessment (section 293(2)of the 1998 Act).
The AMS has the power to consult with other medical practitioners who currently or previously have treated the worker, call for the production of medical reports and to examine the worker (section 324 of the 1998 Act). The AMS then gives a MAC, as to the matters referred for assessment, to the Registrar (section 325). The MAC is binding in relation to certain matters, including the assessment of permanent impairment, “in any proceedings” before the Commission (section 326 of the 1998 Act).
Section 376 of the 1998 Act provides that the WorkCover Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured worker as a result of an injury. The Authority has issued the ‘WorkCover Guides for the Evaluation of Permanent Impairment’ (‘the WorkCover Guides’).
Consideration
In my view the Arbitrator has made an error of law in the determination of what ‘injury’ if any, Ms Tufuga suffered pursuant to section 4 of the 1987 Act. As a result of these errors the referral to the AMS is flawed.
The Arbitrator’s function is to determine the legal and factual issues in the dispute. This is critical to the assessment of permanent impairment by the AMS, in that, for example, findings of fact and ‘liability’ will essentially govern the terms of the referral to the AMS (see comments of Associate Justice Malpass in Wikaira v Registrar of the Workers Compensation Commission of NSW & Anor [2005] NSWSC 954 at para 29).
The Arbitrator, in his reasons, makes no reference to the definition of “injury” in the 1987 Act, nor does he, having found there was one injury arising from five “incidents” determine the date of that injury.
The finding that Ms Tufuga suffered one injury to the lower back and one injury to the right ankle, from five separate incidents, is not sustainable on the evidence that was before the Arbitrator. It is also not consistent with the definition of “injury” in the 1987 Act. There is no provision that allows for effectively ‘aggregating’ disparate injuries. In this case Ms Tufuga’s evidence is of at least three, and possibly five, different times and places where she suffered symptoms potentially amounting to an “injury arising out of or in the course of” her employment. They allegedly span a fifteen-month period and include an injury on a prescribed journey. To conclude that these ‘incidents’ amount to one “injury” is to ignore the definition of “injury”.
The evidence must be carefully considered to determine whether Ms Tufuga has suffered one of more injuries. The relevant evidence is set out above and not repeated here. Ms Tufuga lodged three ‘Compensation Claim’ forms. The first, dated 25 November 2002, claimed an injury occurred at “1500 + 1830 hours” on 6 September 2002, as a result of “bending down”. The form records two different physical tasks that Ms Tufuga was conducting, namely “1. picking up a resident. 2. pushing a lifter”. The ‘injury’ claimed is to the lower back. Ms Tufuga gave further details of these incidents in her statement, set out above. This is not a case where Ms Tufuga claims to have suffered one ‘injury’ and then experienced ongoing symptoms, such as back pain, for the remainder of her shift. She has detailed two incidents, which may well have different pathology and consequences, and may contribute differently, or not at all, to her permanent impairment.
Dr Emmanuel saw Ms Tufuga on 10 September 2002. In his report of 29 September 2004 he states that he diagnosed her as suffering a “musculotendinous injury of her lumbar spine” as a result of both incidents on the day of 6 September 2002. The second incident was recorded as “increased back pain”. Dr Davis records a history of two incidents happening on September 2002. They both attribute the onset of symptoms to the incident at around 3pm. Dr Hitchen records the two incidents of 6 September 2002. He diagnosed “acute low back strain” and considered that her “workplace is at risk of aggravating pre-existing pathology”. His report is not useful in identifying the nature of Ms Tufuga’s two injuries on 6 September 2002.
Ms Tufuga’s own evidence and the report of Dr Emmanuel, her General Practitioner, who saw her only a few days after 6 September 2002, are relevant and probative, they support a finding that Ms Tufuga suffered two “injuries” on 6 September 2002. At around 3pm she suffered a musculotendinous injury to her lower back when lifting a patient. At around 6.30 pm the same day she aggravated or exacerbated that injury by “pushing a lifter”.
The second ‘Compensation Claim’ made by Ms Tufuga was on 16 June 2003. It stated that on 1 April 2003, at “1630 hours” she suffered ‘back pain’ as a result of “transferring a resident from the floor”. In her statement filed in the Commission she also asserts that she had felt a severe increase in pain later that same day. She has, however only made one claim in relation to what occurred that day, i.e. that she injured her back when lifting a patient at around 4.30 pm. On 2 April 2003 Dr Emmanuel diagnosed a “severe exacerbation of her previous musculotendinous injury” due to the incident on the previous day. Dr Giblin recorded this injury and diagnosed soft tissue injury to the back that was subject to episodic exacerbations and remissions.
The third ‘Compensation Claim’ form was lodged on 12 January 2004. It detailed an incident on 26 November 2003 on the bus to work, where Ms Tufuga fell and injured her back. On that form she also described twisting her ankle as she got off the bus. Not only were these two separate incidents, they concerned two different mechanisms of injury and two different parts of her body. Ms Tufuga reported these incidents to Dr Emmanuel on 27 November 2003. He observed “tenderness to palpation of the right heel and reduced dorsiflexion of the ankle”. He advised “rest for two days, strapping and analgesics”. Dr Giblin opines that Ms Tufuga has a permanent soft tissue injury to the right ankle as a result of this fall and that Ms Tufuga aggravated her back injury in the incident on the bus. These are two separate injuries for the purpose of section 4 of the 1987 Act. Dr Hitchen reported that the “ stumble at the bus has caused minor strain of the Achilles”. He considered her back injury to be likely an aggravation of “evolving degenerative spondylosis of the spine”.
In my view the Arbitrator erred in finding these matters to be five “incidents” that gave rise to only one injury to the lower back and one injury to the ankle. The evidence does not support this finding nor does the definition of “injury” in section 4 of the 1987 Act. I find that Ms Tufuga suffered five injuries that are to be assessed for the purpose of her claim for permanent impairment. They are:
1.On 25 November 2002 (around 3pm) injury to the lower back that occurred when “bending down” and “picking up a resident”.
2.On 25 November 2002 (around 6.30 pm) injury to the lower back that occurred when she was “pushing a lifter”.
3.On 1 April 2003, at “1630 hours” injury to the lower back as a result of “transferring a resident from the floor”.
4.On 26 November 2003 injury to the lower back when she fell over on the bus on a journey to work.
5.On 26 November 2003 injury to the right ankle when she twisted and fell as she alighted the bus on a journey to work.
The Arbitrator also erred in taking into account irrelevant considerations for the purpose of determining whether Ms Tufuga suffered an ‘injury’ for the purpose of the 1987 Act. The method of assessment of permanent impairment, pursuant to the Act and the WorkCover Guides, is not a matter that is relevant to finding whether or not the worker suffered an ‘injury’. It is, in any event, for the AMS to make the assessment of permanent impairment in accordance with the Guides. The permanent impairment that arose from each injury (if any) for instance, whether the later injuries were a temporary or aggravation of the earlier injury, or were due to different pathology and each gave rise to a distinct ‘whole person impairment’, is a matter that must be resolved by the AMS. The ‘medical dispute’ should be referred to the AMS on the above basis. In the case of any error in the AMS assessment it may be possible for a dissatisfied party to appeal to the Medical Appeal Panel.
Section 322 (2) of the 1998 Act and the Guides provide that impairments arising from the same injury are to be assessed together and that impairments arising from multiple injuries arising out of the same incident are to be assessed together, for the purpose of assessment of the degree of permanent impairment. The prescribed method of assessment of whole person impairment post 1 January 2002 provides a ‘Combined Values Chart’ to derive a % whole person impairment arising from multiple impairments (see AMA5). Section 323 of the 1998 Act provides for deductions to be made for a pre-existing injury, condition or abnormality. There is no legislative provision that permits permanent impairment arising out of different frank injuries to be assessed together.
Section 67 as it now stands, requires an assessment of the pain and suffering arising from the workers permanent impairment (not injury-section 67(2)), the degree of which must be assessed by an AMS. A reading of the Arbitrator’s reasons for decision does not substantiate the Respondent’s submission, that the Arbitrator, in considering the implications of his finding for an assessment of pain and suffering, confused ‘injury’ with ‘loss’. Whatever errors the Arbitrator may have made, it is clear that he makes no reference to the concept of “loss”, nor is it relevant to the assessment of Ms Tufuga’s injuries, as they all occurred after 1 January 2002. The distinction between the ‘old’ and ‘new’ regime for the assessment of permanent impairment was clearly appreciated by the Arbitrator.
DECISION
The decision of the Arbitrator, dated 27 May 2005, is revoked and the following decision is made in its place:
The medical dispute is to be referred to an Approved Medical Specialist for assessment pursuant to Part 7 of Chapter 7 of the Workplace Injury Management and WorkersCompensation Act 1998 in relation to the following injuries
1.On 25 November 2002 (around 3pm) injury to the lower back that occurred when Ms Tufuga was “bending down” and “picking up a resident”.
2.On 25 November 2002 (around 6.30 pm) injury to the lower back that occurred when Ms Tufuga was “pushing a lifter”.
3.On 1 April 2003, at “1630 hours” injury to the lower back as a result of Ms Tufuga “transferring a resident from the floor”.
4.On 26 November 2003 injury to the lower back when Ms Tufuga fell over on the bus on a journey to work.
5.On 26 November 2003 injury to the right ankle when Ms Tufuga twisted and fell as she alighted the bus on a journey to work.
COSTS
The Appellant is successful on the appeal and seeks costs.
Ms Tufuga submitted that, where the appeal is successful, each party should bear their own costs.
Division 3 of Part 8 of the 1998 Act governs the award of costs in the Commission.
The appropriate order is no order as to costs.
Dr Gabriel Fleming
Deputy President
1 November 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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