Secretary, Department of Education v Balhatchet
[2020] NSWWCCPD 5
•6 February 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Secretary, Department of Education vBalhatchet [2020] NSWWCCPD 5 |
| APPELLANT: | Secretary, Department of Education |
| RESPONDENT: | Deborah Balhatchet |
| INSURER: | Allianz Australia Insurance Ltd as agent for NSW Self Insurance Corporation |
| FILE NUMBER: | A1-2410/19 |
| ARBITRATOR: | Mr G Edwards |
| DATE OF ARBITRATOR’S DECISION: | 5 August 2019 |
| DATE OF APPEAL DECISION: | 6 February 2020 |
| SUBJECT MATTER OF DECISION: | Appeal from an interlocutory decision – Licul v Corney [1976] HCA 6; 180 CLR 213; P & O Ports Ltd v Hawkins [2007] NSWWCCPD 87; 6 DDCR 12 applied – adequacy of reasons – Abdel Naser Qushair v Naji Raffoul [2009] NSWCA 329; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [59]) per McColl JA applied |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Dr Juliet Lucy, counsel | |
| Bartier Perry | |
| Respondent: | |
| Mr L Robison, counsel | |
| Kells | |
| ORDERS MADE ON APPEAL: | 1. Leave to appeal an interlocutory order is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2. The Certificate of Determination dated 5 August 2019 is revoked. 3. The matter is remitted for re-determination by another arbitrator. |
INTRODUCTION AND BACKGROUND
Ms Deborah Balhatchet (the respondent) was employed by the Secretary, Department of Education (the appellant) commencing in 2001 as a part-time teacher’s assistant. During the course of her employment she suffered a number of injuries, described in the pleadings as injuries to the “back, left and right knees, right hip, numbness and tingling in her hands.”[1] Details of the injuries were said to be set out in the appellant’s statement and the medical evidence.
[1] Application to Resolve a Dispute (ARD) Part 4 – Injury details.
The respondent commenced proceedings seeking weekly payments of compensation from 30 December 2013 pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act) treatment expenses pursuant to s 60 of the 1987 Act, and a lump sum pursuant to s 66 of the 1987 Act in the amount of $85,200 in respect of 40% whole person impairment (WPI).
The dates of the injury pleaded in the Application to Resolve a Dispute (ARD) were:
(a) 5 December 2006;
(b) 15 August 2007;
(c) 30 April 2012;
(d) 25 February 2013, and
(e) 28 August 2013, or
(f) in the alternative, “nature and conditions of employment”.
Ultimately, the injuries pleaded in respect of the right hip and hands were discontinued. It was apparent from the respondent’s statement and the medical evidence that the respondent suffered additional injuries to her back and to her knees, which were not referred to in the pleadings.
The matter proceeded to arbitration on 12 July 2019 and 24 July 2019. The respondent submitted that the appellant’s injuries (including those not formally pleaded) constituted a disease of gradual process pursuant to s 4(b) of the 1987 Act or as a consequence of the nature and conditions of employment, or in the alternative, were separate injuries which could be aggregated for the purposes of the assessment of the WPI. The appellant conceded that the respondent had suffered a number of injuries to her back and to her knees (the dates of which were not specified) but submitted that they were each separate personal injuries, which had to be separately assessed for the purposes of the respondent’s WPI claim.
The Arbitrator determined that the respondent’s impairments of the lumbar spine and both knees resulted from the “same injury,” in accordance with s 322(2) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and were to be assessed together. He remitted the claim for permanent impairment to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of the WPI as a result of injury on 27 August 2013. The Arbitrator also awarded the respondent weekly payments pursuant to s 37 of the 1987 Act on the basis that the respondent had no capacity for work and made an award in favour of the respondent in respect of her treatment expenses.
The appellant appealed the Arbitrator’s determination that the assessment of the lumbar spine and both knees were the same injury and were to be assessed together. The appellant also appealed the Arbitrator’s determination in relation to the award of weekly payments.
ON THE PAPERS
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.”
Both parties submit that the appeal can be determined on the papers.
I have had regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
Leave to appeal an interlocutory decision.
In its Opposition to the Appeal Against Decision of Arbitrator (opposition), the respondent asserts that the appellant requires leave to appeal the Arbitrator’s determination that the respondent’s impairments of the lumbar spine and both knees resulted from the “same injury” and were to be assessed together. The respondent contends that the order remitting the claim for permanent impairment to an AMS is an interlocutory order, and that s 352(3A) of the 1998 Act provides that a party must seek leave to appeal an interlocutory order. The respondent submits that the decision was an interlocutory decision and did not finally dispose of the rights of either party because the compensation pursuant to s 66 of the 1987 Act has not yet been determined by way of a Certificate of Determination (COD).
The respondent relies on various Presidential authorities in which a referral to an AMS was held to be interlocutory.[2] The respondent seeks to distinguish those cases in which a Presidential member determined that the referral to an AMS was not interlocutory, such as Dunphy v Boney,[3] in which the COD finally disposed of the worker’s entitlement to weekly compensation and Maricic v Medina Serviced Apartments Pty Limited,[4] in which the the injuries determined to have been suffered as a result of the appellant’s workplace accident were finally and bindingly determined.
[2] Bagtrans Pty Ltdv Simunic [2007] NSWWCCPD 212; McGuire v State Transit Authority of New South Wales (No 2) [2007] NSWWCCPD 109; Arquero v DJ and T Denning Pty Ltd t/as Capital Coast Steel [2007] NSWWCCPD 126.
[3] [2010] NSWWCCPD 111 (Boney).
[4] [2007] NSWWCCPD 196 (Maricic).
The respondent submits that if leave to appeal is sought, it should not be granted because:
(a) it would be against the public interest in finality of litigation;
(b) the appellant did not seek leave at the outset and has advanced no basis for the granting of leave, and
(c) the proposed appeal has no merit.
The respondent contends that the appeal should be struck out.
The appellant made submissions as to whether the decision was interlocutory and the granting of leave in its submissions in reply to the opposition.
The appellant contends that the respondent’s submission that the appeal should be struck out ignores the fact that the order appealed against is not interlocutory and that even if it were, the order in relation to weekly compensation is final and binding. The appellant submits that the Arbitrator’s determination as a whole is not interlocutory and the COD indicates that the Commission has determined the dispute between the parties. The appellant says that the dispute between the parties was about whether the impairments of the respondent’s lumbar spine and knee resulted from the same injury so that they could be assessed together, and that dispute was determined.
The appellant asserts that s 352(3A) of the 1998 Act should properly be construed so as not to exclude appeals from a COD that finally determines the rights of the parties even if one of the orders is interlocutory. The appellant submits that such a construction promotes the purpose or object of the Act, in accordance with s 35 of the Interpretation Act 1987, which is to deter appeals from orders in circumstances where it would detract from the efficient resolution of a dispute. The appellant says that if the Commission does not accept this construction of s 352(3A), the appeal is competent in respect of the appeal against the Arbitrator’s decision in respect of weekly payments.
The appellant accepts that there are authorities for the proposition that a referral to an AMS is an interlocutory decision and advises that if leave is required to bring this appeal, the appellant formally applies for such leave. The appellant also seeks to be excused from compliance with r 16.2(7)(a) of the Workers Compensation Commission Rules 2011 (the 2011 Rules), which requires arguments in relation to an application for leave to appeal an interlocutory decision to be attached to the Application – Appeal a Decision of Arbitrator. The appellant says that the issue was raised by the respondent, and it has replied to those submissions on this reply.
The appellant submits that determining grounds one and two of the appeal is desirable for the proper and effective determination of the dispute because there is no utility in refusing leave and waiting on the outcome of the AMS assessment and a final COD to be issued. The appellant says that this would incur further costs. Further, the appellant submits that the second order of the Arbitrator is a final order and it is just and efficient to deal with the appeal from both orders together. Such an approach is consistent with objectives of the Commission to provide a fair and cost effective system of resolution for disputes (s 367(1)(a) of the 1998 Act), and to be fair, affordable and financially viable, efficient and effective (s 3(d) and 3(f) of the 1998 Act).
The appellant contends that the Arbitrator’s decision that the impairments in the back and knees resulted from the same pathology effectively determined the substantive rights of the parties, which must be a significant factor to take into account in favour of granting leave to appeal an interlocutory decision. This is said to be because s 326(1)(a) of the 1998 Act provides that the Medical Assessment Certificate (MAC) which will ultimately be issued will be conclusively presumed to be correct. The appellant indicates that should leave be refused, the appellant would have to wait until the MAC and a further COD were issued, which would unduly delay the resolution of the dispute, contrary to the Commission’s objective to provide a “proper and effective” determination of the dispute in accordance with s 352(3A) of the 1998 Act.
The appellant asserts that, contrary to the respondent’s submission, the appeal has strong merit and, on that basis, if leave is required to appeal the decision, it ought to be granted.
Consideration
Subsection 352(3A) of the 1998 Act provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
A “decision” is defined in subs 352(8) of the 1998 Act to include “an award, interim award, order, determination, ruling and direction”. The meaning of “interlocutory” in subs 352(3A) is undefined.
In Licul v Corney,[5] Gibbs J (as his Honour then was) said (footnotes omitted):
“The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view - which was preferred by the Court of Appeal in Salter Rex and Co v Ghosh - is that the test depends on the nature of the application made to the Court. The other view which, since Hall v Nominal Defendant, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?”[6]
[5] [1976] HCA 6; 180 CLR 213 (Licul).
[6] Licul, [11].
The observations of Gibbs J as to what constitutes an interlocutory order needs to be considered in the context of the legislative and procedural framework of the Commission.
The respondent has identified a number of Presidential authorities dealing with the question of whether an Arbitrator’s decision is or is not interlocutory and seeks to distinguish Boney and Maricic. In Boney, despite the worker’s claim for permanent impairment being subject to a referral for assessment by an AMS, President Judge Keating held that the decision appealed against was not interlocutory because it finally determined the rights of the parties in respect of the worker’s entitlements to weekly payments and treatment expenses. In that case, the dispute which was determined was whether the worker had suffered injury. Deputy President Snell in Maricic also determined that the decision appealed against was not interlocutory in circumstances where the only head of claim by the worker was for lump sum compensation pursuant to s 66 of the 1987 Act, but the decision of the Arbitrator involved a determination of the question of “injury” prior to the referral to an AMS for assessment of the worker’s WPI.
I accept that the decisions in Boney and Maricic are not of the same character as the decision made by the Arbitrator in the present case. In the present matter, the issue for determination was whether the assessment of the respondent’s WPI was to be dealt with as one injury.
Neither party referred to or relied upon the decision of Deputy President Roche in P & O Ports Limited v Hawkins[7] where the issue determined by the Arbitrator was whether the deemed date of injury in a ‘disease’ case was before or after 31 December 2001. The decision affected whether the worker’s lump sum entitlement was to be assessed on the basis of the Table of Disabilities, which governs the assessment of injuries occurring before 1 January 2002, or as the WPI. The Arbitrator’s finding did not involve an award of compensation but affected how the referral to an AMS was to be framed. Deputy President Roche concluded that the Arbitrator’s determination was of an interlocutory nature, observing that:
“The Arbitrator’s determination that the deemed date of injury was 20 July 2005 is more difficult. It amounts to a finding on a preliminary issue that is relevant to deciding if the Respondent Worker’s lump sum compensation is to be calculated under the Table of Disabilities or under the new WorkCover Guides for whole person impairment applicable to injuries sustained after 31 December 2001. The finding has not determined the parties’ rights or whether the Respondent Worker is entitled to compensation, as would be the case if a determination had been made on an issue such as injury, worker or substantial contributing factor.”[8]
[7] [2007] NSWWCCPD 87 (Hawkins).
[8] Hawkins, [44].
Similarly, in the present case, the Arbitrator has not made a determination that would have the effect of allowing or excluding the worker’s entitlement to compensation. As in Hawkins, the Arbitrator’s decision on point affects the way in which the AMS is to assess the respondent’s entitlement to compensation for her permanent impairment. I conclude, therefore, that the Arbitrator’s decision that the injuries to the knees and lumbar spine can be assessed together is interlocutory in nature.
I am therefore required to consider whether leave ought to be granted to appeal that decision.
Section 352(3A) of the 1998 Act precludes the granting of leave to appeal an interlocutory decision unless the Commission is of the opinion that determining the appeal is “necessary or desirable for the proper and effective determination of the dispute”.
I note the following factors, when considered together, weigh heavily in favour of the granting of leave:
(a) the Arbitrator also determined that the respondent was entitled to weekly payments of compensation, a decision which is the subject of a further ground of appeal in this appeal. Although the reason for an entitlement to weekly payments is divorced from the issue pertaining to the assessment of the WPI, the parties are involved in an appeal in any event;
(b) if leave is not granted, the matter will require assessment by an AMS and a MAC and subsequently a COD to be issued, before the appellant can appeal the decision. This would involve significant delay in the resolution of the proceedings;
(c) the failure to grant leave would also involve additional expense in bringing a separate appeal, and
(d) if the appeal eventually succeeded, such an outcome would require a further referral to an AMS, and a new MAC and a new COD to be issued, which would incur further expense and a wasteful use of resources.
The respondent puts forward reasons as to why leave should not be granted. That is, that:
(a) the granting of leave would be against the public interest in finality of litigation;
(b) the appellant did not seek leave at the outset and has advanced no basis for the grant of leave, and
(c) the proposed appeal has no merit.
Rule 16.2(7)(a) of the 2011 Rules requires that submissions as to why leave ought to be granted to appeal an interlocutory decision should be attached to the application to appeal. The appellant seeks dispensation of that requirement. Rule 1.6(2) of the 2011 Rules provides that the Commission may dispense with the compliance with the 2011 Rules either before or after the occasion for compliance is required.
The respondent raised the issue that the decision appealed against is interlocutory in nature in its reply and submits that the appeal should be struck out. I determined that the decision appealed against is interlocutory in nature. In the light of that fact and in the light of the fact that the appellant’s appeal includes an appeal from another decision of the Arbitrator, which is the subject of the same COD, I do not accept that it is in the interests of justice that the appeal from the interlocutory decision should be struck out or otherwise dealt with without the appellant being permitted to make submissions. I therefore dispense with the requirements of r 16.2(7)(a) of the 2011 Rules.
I have considered the merits of the appeal and discussed the merits below. The public interest in finality of litigation has little impact in the circumstances of this case where the Arbitrator’s decision has otherwise been appealed in any event.
Taking all of those matters into account, I find that the reasons for granting leave far outweigh the factors that measure against doing so and I grant leave pursuant to s 352(3A) of the 1998 Act for the appellant to appeal the interlocutory decision.
THE EVIDENCE
The respondent’s statement evidence
The respondent provided a statement dated 8 May 2019.[9] She gave details of the following dates of incidents and injuries:
[9] Application to Resolve a Dispute (ARD), pp 1–7.
(a) 5 December 2006 – when she was attempting to separate two boys who were fighting, the respondent experienced severe pain in her “right hip and stomach area.” She consulted her local doctor who diagnosed abdominal muscle strain and a strained lower back. She remained off work until the end of the Christmas school holidays, but continued to suffer significant pain when attending to small tasks;
(b) 21 June 2007 – the respondent was putting books away on a bottom shelf, when she experienced pain in her stomach, abdominal muscles and back. The respondent attended her local doctor and underwent an MRI and x-ray of her spine;
(c) February 2008 – the respondent was pushed by a student, which caused her to fall down stairs. The respondent did not describe any injury;
(d) 16 March 2008 – the respondent fell down stairs, hurting her knees and back;
(e) March 2010 – the respondent fell over a bin in the school office, hurting her back, hip and stomach;
(f) 23 August 2010 – a special needs child pulled her to the ground and punched her. The respondent did not describe an injury;
(g) 25 July 2011 – she “pulled” her neck at work;
(h) 30 April 2012 – the respondent was again punched and kicked by a special needs child who she was attempting to restrain. The respondent said she suffered pain following this incident, but did not identify in which body part or parts;
(i) 25 February 2013 – the respondent stepped aside to avoid an object a student was throwing at her, her back and hips “collapsed”, causing her to fall to the ground;
(j) 19 March 2013 – the respondent’s knee collapsed, causing her to fall to the ground. She felt pain in the wrist, which she had used to break her fall. The particular knee was not identified. She said her knee collapsed on three further occasions between April and May 2013;
(k) 20 June 2013 – pain in her knees caused her to pass out in class, and
(l) 27 August 2013 – the respondent injured her back and knees when a child threw a chair at her, causing her to fall over.
The respondent detailed the various times off work following each incident, and the treatment she received from her local doctor, her orthopaedic specialists, psychologist, pain management specialist, chiropractor, and sports and exercise physician. Those treatment providers whose evidence is relevant to the appeal are identified below.
The respondent complained of continuing back pain and pain in her abdomen since the initial incident. She reported that she underwent an MRI scan of her right knee in November 2008, an arthroscopy of the right knee in June 2009 and an arthroscopy of the left knee on 3 March 2011. The respondent later underwent bilateral knee replacements at the hands of Dr Dixon in 2014.
The respondent reported that she was medically retired in about 2015.
Notification of injury forms
Three injury notification forms detailing dates of injury and complaints were as follows:
(a) 5 December 2006 – separating children fighting – injured stomach and strained muscles;[10]
(b) 21 June 2007 – putting books down on a shelf – reinjury of December injury – stomach back and shoulder;[11]
(c) 30 April 2012 – kicked and punched by a student – injury to back and stomach.[12]
[10] ARD, p 8.
[11] ARD, pp 9–10.
[12] ARD, pp 12–14.
Other documentation
A number of notices of decisions to decline liability, and reviews of those decisions issued by the respondent’s insurer were also in evidence. Those documents are of little assistance in identifying the various injuries suffered by the respondent in her employment.[13]
[13] ARD, pp 24–82.
On 3 February 2014, the appellant’s insurer wrote to the respondent’s legal representatives, attaching copies of their files, which detailed the following claims made by the respondent:
(a) injury to the respondent’s abdomen and back on 5 December 2006, for which liability was accepted and which was finalised on 22 January 2008;
(b) injury to the back on 15 August 2007, which was initially accepted but subsequently declined;
(c) injuries to the back and both knees on 30 April 2012, declined on 17 September 2012;
(d) an aggravation to the back and both knees on 25 February 2013, which was declined, and
(e) injury on 27 August 2013 when a student threw a chair at her, causing right knee injury, low back injury and an exacerbation of an “old” left knee injury.[14]
The medical evidence
[14] ARD, pp 85–86.
The general practitioners’ reports
The only evidence from the respondent’s general practitioners was a letter directed to the respondent’s insurer from Dr Desmond P Rankin (undated)[15] and three reports from Dr Deepa Ravindran of the same practice dated 3 October 2012,[16] 21 May 2014[17] and 11 June 2015.[18]
[15] ARD, p 126.
[16] ARD, pp 30–31.
[17] ARD, p 134.
[18] ARD, p 136.
Dr Rankin’s letter was in response to the insurer’s letter declining liability dated 20 January 2009. In that letter, Dr Rankin wrote that the respondent:
“has had chronic pain in her back and her abdomen since her injuries at school, (the first being on 5 December 2006 and the second, causing a recurrence of her pain, on 21 June 2007.) I have known her for many years and she did not have these pains prior to her injuries.”
In his report dated 3 October 2012, Dr Ravindran reported right sided sacro-iliac instability, which contributed to ongoing symptoms in the right side and knee problems due to altered gait.
The treating specialists reports
The respondent was referred to Dr Ashish Diwan, orthopaedic surgeon. Surprisingly, there is only one report in evidence from Dr Diwan, which is dated 18 November 2008 and directed to the respondent’s insurer.[19] In that report, Dr Diwan referred to the results of various radiological investigations, including an MRI scan of the lumbar spine. Dr Diwan recorded the respondent’s “main” complaints as her low back, right knee problem and transient radiating pain down the right leg. He was of the view that the respondent’s low back pain can be explained by her degenerative disc disease. Dr Diwan recorded that injections into the L5/S1 and sacroiliac joints provided the respondent with some relief of her right leg symptoms.
[19] ARD, p 97.
The respondent was also referred to Dr Michael Dixon, orthopaedic surgeon, who it appears first saw the respondent in May 2009 for review of the respondent’s right knee. In his report dated 29 May 2009,[20] Dr Dixon took a history of the injury in December 2006 and recorded the respondent’s complaints as problems in the hip, low back, and the subsequent development of problems with her right knee. Dr Dixon noted that the respondent had been using crutches to mobilise since October 2008. Dr Dixon recommended a right knee arthroscopy.
[20] ARD, p 102.
The next report in time from Dr Dixon is dated 21 July 2011.[21] In that report, Dr Dixon recorded complaints of a feeling of weakness in the legs and the legs giving way and made reference to both of the respondent’s knees. Dr Dixon was of the view that a further arthroscopy would make no difference to either of the respondent’s knees. In a following report dated 3 July 2013,[22] Dr Dixon diagnosed osteoarthritis of both knees, and confirmed his view that arthroscopy of either knee would not be of benefit. He said the respondent would ultimately require total knee replacements. Dr Dixon was of the view that the respondent’s symptoms in the knees were being exacerbated by the back condition. He said the “most recent injury” exacerbated her symptoms but that the original injury showed evidence of early osteoarthritis and a very large medial meniscal tear.
[21] ARD, p 116.
[22] ARD, p 119.
In a subsequent report dated 6 June 2013, Dr Dixon recorded that the respondent was “having more and more trouble with her knees resulting in falling at work on a regular basis.”[23] Dr Dixon noted the respondent was using two walking sticks to mobilise and was wearing knee braces. Dr Dixon also confirmed in a report dated 11 September 2014 that the respondent underwent total knee replacements on 29 July 2014.[24]
[23] ARD, p 122.
[24] ARD, p 133.
Physiotherapy, chiropractic and rehabilitation reports
The respondent was referred to Mr Mark Sorenson, chiropractor, who first treated the respondent on 15 April 2008. In a report dated 21 December 2008, Mr Sorenson advised that on first presentation, the respondent complained of a 16 month history of low back pain. The pain was mainly on the right side, with abdominal pain, bloating and right sciatic type symptoms, all as a result of a playground fight. Mr Sorenson also noted that the respondent “lately” also complained of right knee pain.[25] In a report dated 22 February 2009, Mr Sorensen wrote that the right sacroiliac joint was unstable and the knees and back became secondary problems.[26]
[25] ARD, p 128.
[26] ARD, p 127.
The respondent also attended Jannali Physiotherapy and Sports Injury Clinic. Three reports from that clinic were in evidence.[27] In a report dated 29 October 2008, Mr Darren Etherington reported that the respondent was “having trouble recovering from the low back injury with more recent right knee pain that has troubled her on and off for the past two years.”[28] On 4 September 2013, Mr Etherington reported that the respondent had experienced a number of falls since 21 June 2007, caused by her left leg giving way and her back instability.[29] The remaining reports were non-specific in relation to dates of injury and body parts injured, other than to report a “long and complicated recovery from her original low back and left knee injury sustained at work on the 21-06- 2007.”[30]
[27] Report by Mr Darren Etherington dated 29 October 2008, ARD p 131; report by Ms Kathryn Oats dated 28 March 2010, ARD p 103; report by Mr Darren Etherington dated 4 September 2013, ARD p 99.
[28] ARD, p 131.
[29] ARD, p 99.
[30] Report by Ms Kathryn Oats dated 28 March 2010, ARD, p 103.
Ms Elli Acic, physiotherapist from “Take Control” Active Rehab provided a number of reports following assessment of the respondent.[31] In a report dated 25 February 2010, Ms Acic recorded that the respondent experienced severe stabbing pain in the stomach and low back in the injury on 5 December 2006. Ms Acic noted that the respondent complained of low back pain referred to the right hip and bilateral groin pain as well as complaints of bilateral knee pain, with an arthroscopy of the right knee in June 2010.[32]
[31] ARD, pp 104–112.
[32] Report dated 25 February 2010, ARD, p 104.
In subsequent documentation from “Take Control” Active Rehab dated 31 July 2010,[33] which appears to have been authored by Ms Acic, the respondent’s complaints were recorded as “ongoing back and bilateral knee pain following a work related accident on 5/12/05, followed by another fall a short while later.”[34]
[33] ARD, pp 107–112.
[34] Report dated 31 July 2010, ARD, p 107.
Reports of Dr Jeni Saunders, sports and exercise physician
The respondent was also referred to Dr Jeni Saunders. It is unclear when the respondent first consulted Dr Saunders, however reports commencing from 1 July 2009 and up until 9 July 2015 are in evidence.[35] The first report referred to the respondent having undergone an arthroscopy and removal of a torn medial meniscus in the (unspecified) knee.[36]
[35] ARD, pp 100, 101, 106, 113, 117–118, 124–125.
[36] ARD, p 100.
In a substantive report dated 12 February 2009, Dr Saunders described “two injuries,” the first an injury to the disc and the second a right sided sacroiliac joint ligamentous instability. Dr Saunders was of the view that the weakness in the respondent’s right leg was explained by the instability of the sacroiliac joint. Dr Saunders reported that the respondent also suffered from a knee injury with a diagnosis of meniscal tear and medial collateral ligament strain affecting the respondent’s ability to stand on her leg.[37] On 21 January 2010, Dr Saunders reported that the respondent was experiencing bilateral knee pain.[38] On 29 May 2013, Dr Saunders recorded that the respondent had been experiencing a number of falls with the left and right legs giving way and suffered a further injury in February 2013, which resulted in an acute exacerbation of her injuries.[39]
[37] ARD, p 117.
[38] Report dated 21 January 2010, ARD, p 106.
[39] Report dated 29 May 2013, ARD, p 124.
The radiological investigations
The following relevant radiological investigations were in evidence:
(a) investigation described by the respondent as a CT scan of the low back dated 3 August 2007;[40]
(b) SPECT / CT scan of the low back 27 August 2008;[41]
(c) MRI scan of the right knee dated 11 November 2008;[42]
(d) MRI of the left knee dated 17 February 2011;[43]
(e) MRI of both left and right knees dated 10 August 2012,[44] and
(f) MRI of the lumbosacral spine and right hip on 10 July 2013.[45]
[40] ARD, p 203.
[41] ARD, p 205.
[42] ARD, pp 207–208.
[43] ARD, p 212.
[44] ARD, pp 213–214.
[45] ARD, p 215
The appellant’s medico-legal reports
The appellant sought to rely on the reports of Dr John Douglas, orthopaedic surgeon, Dr Richard Powell, orthopaedic surgeon and Dr Greg Bruce, also an orthopaedic surgeon. The Arbitrator was of the view that reliance on the opinions of more than one forensic medical opinion was in breach of reg 44 of the Workers Compensation Regulation 2016. The appellant elected to rely on the opinion of Dr Bruce. The reports of Dr Douglas and Dr Powell were, however, admitted on the limited basis as evidence of the histories taken by those doctors.
Dr Douglas provided reports dated 27 July 2009[46] and 9 September 2010.[47] In his first report, Dr Douglas took the following history of injuries:
(a) injury to low back and abdominal pain on 5 December 2006 while separating two fighting students;
(b) the respondent collapsed and fell while stacking away books on 21 June 2007, following which she received physiotherapy to her back;
(c) on 16 March 2008, the appellant fell down stairs when her legs gave way, after which the respondent was referred to Dr Saunders and received a CT guided injection into the spine at the L5/S1 level and thereafter Feldenkrais therapy to the spine, and
(d) in October 2008, the respondent’s right knee became painful, which she attributed to awkward gait and frequent falls.
[46] ARD, pp 137–152.
[47] ARD, pp 153–163.
In his second report, Dr Douglas confirmed the history recorded in his previous report, including that the respondent experienced frequent falls. Dr Douglas noted that with the falls the respondent experienced knee pain, especially in the right knee. Dr Douglas recorded a subsequent injury on 23 August 2010, when an autistic child pulled her to the ground and punched her, causing further injury to the back and both knees.
Dr Powell examined the respondent again on 9 September 2011 and provided a report based on that examination on 22 September 2011. Dr Powell took a history of:
(a) injury to the back on 5 December 2006 in a fall at work;
(b) injury on 21 June 2007 when putting books on shelves, and
(c) a fall down stairs when her legs gave way on 16 March 2008.
Dr Powell took a history of “insidious onset of bilateral knee symptoms” in late 2008, with no precipitating incident and the right knee being the most problematic.[48]
[48] Report dated 22 September 2011, Reply to ARD (reply), pp 16–23.
Dr Bruce provided a report dated 6 October 2017, following an examination of the respondent on 3 October 2017. Dr Bruce said that the respondent was referred to him for assessment in respect of the injury on 27 August 2013. The history of that injury, as reported by the respondent, was that a child became violent and threatened to assault her by throwing a bench at her. The respondent quickly twisted and fell to the ground, landing on her right side and onto both hands and knees. Dr Bruce recorded that the respondent was immediately aware of increased pain in her back and both knees. Dr Bruce noted a history of pre-existing complaints in the low back and knees that were frequently causing the respondent to fall.
Dr Bruce reviewed the past history, which included the back injury in 2006, which was reported to cause radiating pain into the stomach and both legs. Dr Bruce reported that the knee pain commenced some weeks or months after the respondent returned to work in early 2007. The history recorded by Dr Bruce of the incident on 21 June 2007 was that the injury resulted from the respondent’s knees and back giving way. Dr Bruce said that the respondent continued to experience problems with her back and knees giving way, and recurrent falls and aggravations until the “episode in 2013.”[49]
[49] Report dated 6 October 2017, reply, p 19.
Dr Bruce was of the opinion that the fall on 27 August 2013 caused a temporary increase in symptoms but did not add to the pathology or aggravate the underlying condition. Dr Bruce was of the view that the bilateral total knee replacements were as a result of naturally occurring bilateral osteoarthritis of the knees, which had previously been aggravated by a series of falls commencing in 2006, and the naturally occurring spondylosis with degeneration of the lumbar spine and sacroiliac joint which pre-existed the fall in August 2013.
Dr Bruce indicated that he did not assess the respondent in terms of the previous injuries between 2006 and 2013 and the impact of those injuries on the pathology and symptoms.
Dr Bruce assessed the respondent’s WPI as 41% but made a 100% deduction because the impairment resulted from the earlier injuries and the naturally occurring condition.
The respondent’s medico-legal report
The respondent qualified Dr James Bodel, orthopaedic surgeon, to provide an opinion.
Dr Bodel first examined the respondent on 7 November 2012 and provided a report of the same date.[50] The history recorded by Dr Bodel was that:
(a) the respondent suffered injury to her low back and right hip on 5 December 2006;
(b) following that injury, the respondent returned to work but her symptoms deteriorated, leading to her ceasing work on 21 June 2007 without any precipitating incident;
(c) the respondent experienced subsequent multiple falls which further aggravated her symptoms. She also occasionally tripped and was pulled to the ground by a student, and
(d) the respondent developed increasing pain in her knees and underwent arthroscopy of the right knee on 3 March 2011.
[50] ARD, pp 181–187.
Dr Bodel noted the various radiological investigations, which he said showed:
(a) definite disc pathology at L4/5 and L5/S1 levels of the lumbar spine;
(b) degenerative changes throughout the spine;
(c) reported increased uptake in the right sacroiliac joint;
(d) medial compartment osteoarthritis and a tear of the posterior horn of the medial meniscus in the right knee, and
(e) medial compartment changes in the left knee with a posterior horn tear of the medial meniscus in the left knee.
Dr Bodel reviewed the documentation provided to him, which included reports of the radiological investigations, and various assessments and reports of the respondent’s condition.
Dr Bodel accepted that the respondent suffered an injury by way of an aggravation of an underlying previously asymptomatic degenerative process in both her knees. Dr Bodel concluded that the respondent had an initial episode of back pain and right hip pain together with subsequent falls leading to knee pain as a consequence of the injuries that occurred at work. He was of the view that the symptoms resulted from the disc pathology at L5/S1 level and the sacroiliac joints were not the main pain generator. Dr Bodel considered that as a consequence of the recurring falls which occurred because of the back injury, the respondent suffered an aggravation, acceleration, exacerbation and deterioration of the osteoarthritic change in both knees.
Dr Bodel re-examined the respondent on 14 April 2016 and provided a further report dated 4 October 2016 at the request of the respondent’s legal representatives.[51]
[51] ARD, pp 190–196.
On this occasion, Dr Bodel took a consistent history of the injuries on 5 December 2006 and 21 June 2007 and of the respondent further aggravating her back in the incident on 15 August 2007, following which she was referred to Dr David Maxwell, orthopaedic surgeon. Dr Bodel recorded that the respondent’s pain spread to the hips, which would give way, and that the respondent’s low back, sacroiliac joint and hip condition steadily deteriorated.
Dr Bodel noted the further injury in March 2010 in which the respondent tripped over a bin and reinjured her knees and back, and the incident on 25 February 2013, in which the respondent further aggravated her back, both knees and right hip. Dr Bodel recorded that the incident on 25 February 2013 was the last incident.
Dr Bodel indicated that the respondent had experienced “multiple recurrences of the original injury as listed above.”[52] Dr Bodel noted the complex history of multiple episodes of giving way of the knees and back and of multiple injuries. Dr Bodel concluded that the respondent’s disability was directly related to the recorded injuries. He diagnosed:
(a) disc pathology in the lumbosacral junction caused by the original injury in 2006, and
(b) aggravation, acceleration, exacerbation and deterioration of degenerative arthritic changes in both knees caused by the multiple episodes of giving way and the “other” work related injuries.
[52] Report dated 4 October 2016, ARD, p 193.
In a separate report of the same date, Dr Bodel assessed the respondent’s impairment to be 40% WPI.[53]
[53] ARD, pp 188–189.
In a response to queries from the respondent’s legal representatives, on 10 January 2017 Dr Bodel wrote:
“On reviewing this lady’s history, I would indicate that it appears that she has had a series of aggravating incidents at work, particularly the original injury on 05 December 2006 and the subsequent injury on 21 July 2007, but multiple other recurrences as well. Clinically, from a medical point of view, this lady has a disease process in the lumbar spine and also in the knees, and to be fair l would have thought that the injury is in fact a nature and conditions claim by way of aggravation, acceleration, exacerbation and deterioration of a disease process in these areas of injury.
Under that circumstance, I believe that the appropriate way to assess the level of Whole Person Impairment is by the use of a deemed date being the time when she ceased work in November 2013, as there is no definite indication that any of the defined events did cause major structural damage in the form of a frank incident or injury at those times.
I would therefore conclude that this lady has the 40% Whole Person Impairment overall, as I have indicated in accordance with the supplementary report dated 04 October 2016.”[54]
[54] ARD, pp 197–198.
Dr Bodel again responded to further queries from the respondent’s legal representatives on 23 May 2018.[55] He was asked a series of not very clear questions which were inelegantly phrased. Dr Bodel referred to the definition of injury in the 1987 Act, and said that the injury was an aggravation, acceleration, exacerbation and deterioration of degenerative disc disease in the lumbar spine and osteoarthritis in the knees. He explained that the underlying pathology was the disease process, which had been aggravated.
[55] ARD, pp 199–202.
Dr Bodel was asked to comment on Dr Bruce’s opinion. Dr Bodel agreed that the respondent had a long standing degenerative disc disease and osteoarthritis in both knees. He said. however, that he was satisfied that although the disease process was not directly attributable to the nature of the work performed by the respondent, the evidence showed that she was asymptomatic at the time she commenced her employment with the appellant, and was symptom free during the first five years of that employment. Dr Bodel referred to the incidents in 2006 and 2007 and the subsequent recurrences. He commented that the increasing back pain caused the respondent to squat and kneel, rather than bend at the waist, which caused aggravation of the degenerative condition in the knees.
Dr Bodel did not agree with Dr Bruce’s opinion that there should be 100% deduction for pre-existing injuries or conditions from the assessment of the respondent’s WPI. He said that all of the injurious events, including the incident on 27 August 2013, caused the aggravation of the underlying condition and were not temporary in nature. Further, he was satisfied that the progressively deteriorating condition was causally linked to the “injury”. Dr Bodel indicated that he tended to agree that the specific incident in August 2013 was not a substantial contributing factor to the current condition, but that the nature and conditions of the respondent’s employment over many years, together with the multiple falls, aggravated accelerated, exacerbated and deteriorated the disease process in the respondent’s back and knees.
THE ARBITRATOR’S REASONS
In his statement of reasons attached to the COD,[56] the Arbitrator identified the issues requiring determination as follows:
“(a) Did the applicant suffer a ‘personal injury’ to her lumbar spine and knees as a result of several events or incidents in the course of employment within the meaning of s 4(a) of the 1987 Act, or, in the alternative, did she suffer a ‘disease injury’ to her lumbar spine and knees within the meaning of s 4(b)(ii) of the 1987 Act as a result of the ‘nature and conditions of employment’ with the injury deemed to have happened on 27 August 2013?
(b) Do the impairments of the lumbar spine and the lower extremities result from the same injury within the meaning of s 322(2) of the 1998 Act?
(c) Are the medical and related treatment expenses claimed reasonably necessary as a result of injury within the meaning of s 60 of the 1987 Act?
(d) Is the applicant entitled to an award of weekly payments of compensation from 31 December 2013 for the remainder of the second entitlement (14 – 130 weeks) pursuant to s 37 of the 1987 Act?”
[56] Balhatchet v Secretary, Department of Education [2019] NSWWCC 263 (reasons).
The Arbitrator proceeded to consider the first issue. He referred to the dates of injury particularised in the ARD, and the description of injury. He noted that the respondent’s counsel had conducted her case on the basis that the numerous separate incidents constituted personal injury within the meaning of s 4(a) of the 1987 Act, or in the alternative, the respondent suffered a disease injury within the meaning of s 4(b)(ii) of the 1987 Act, as a result of the nature and conditions of employment with a deemed date of injury on 27 August 2013. The Arbitrator further noted that the respondent asserted that the impairments of the lumbar spine and the knees were the “same Injury” and were to be assessed together by the AMS in accordance with s 322(2) of the 1998 Act and the Presidential decisions of Department of Juvenile Justice v Edmed[57] and Woolworths Limited v Wagg.[58]
[57] [2008] NSWWCCPD 6; 7 DDCR 28 (Edmed).
[58] [2017] NSWWCCPD 13 (Wagg).
The Arbitrator recited a long history and details of the respondent’s injuries, symptoms and treatment, which it appears he collated from the respondent’s statement and the medical evidence before him. He summarised the submissions of both parties.
The Arbitrator commented that there was some merit in the appellant’s criticism of the manner in which the pleadings set out the injuries and the way the injuries were described and the failure of the respondent to properly identify the incidents and body parts injured in those incidents in her statement. The Arbitrator noted, however, that the appellant had conceded that the respondent had suffered a number of (unspecified) events or incidents in the course of her employment in which the respondent suffered injury to the lumbar spine and the knees. The Arbitrator added that he was also mindful of the fact that in accordance with s 354(1) of the 1998 Act, proceedings in the Commission are to be conducted with as little formality and technicality as a proper consideration of the matter permits. Further, that s 345(3) of the 1998 Act requires the Commission to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
The Arbitrator observed that the receipt of an injury or injurious event is to be distinguished from the pathology arising from the event. The Arbitrator said that he was satisfied that the respondent suffered an injurious event on each occasion, being a work incident and the pathology arising from it, relying on Lyons v Master Builders Association of NSW Pty Ltd[59] and Spicer Axle Australia Pty Limited v Merza.[60] The Arbitrator referred to Neilson CCJ’s observations in Lyons, to say that where a frank injury initiates a degenerative disease, then the injury is an “injury simpliciter” within the meaning of s 4(a) of the 1987 Act, and does not need recourse to s 4(b)(ii) of the 1987 Act or ss 15 or 16 of the 1987 Act (the disease provisions). The Arbitrator further referred to Rail Services Australia v Dimovski,[61] in which the Court of Appeal followed its earlier decision of Australian Conveyer Engineering Pty Limited v Mecha Engineering Pty Ltd,[62] declining to follow its earlier decision in Colliar v Bulley,[63] and agreed with the reasoning of Neilson CCJ in Lyons.
[59] (2003) 25 NSWCCR 422 (Lyons).
[60] [2007] NSWWCCPD 148.
[61] [2004] NSWCA 267; 1 DDCR 648.
[62] (1998) 48 NSWLR 606; 17 NSWCCR 309.
[63] [2000] NSWCA 1; 19 NSWCCR 302.
The Arbitrator discussed the phrase “nature and conditions” which he said is not a term used in the workers compensation legislation and the use of which has been criticised, citing Toplis v Coles Group Ltd t/as Coles Logistics[64] and considered to be “quaint” and “meaningless” by Neilson CCJ in Mirkovic v David Holdings Pty Ltd.[65]
[64] [2009] NSWWCCPD 70, [65].
[65] [1995] NSWCC 19; 11 NSWCCR 656, 667.
The Arbitrator agreed with the appellant’s submission that the injuries suffered by the respondent were not disease injuries within the meaning of s 4(b)(ii) of the 1987 Act and did not result from the “nature and conditions” of the respondent’s employment. The Arbitrator considered that the respondent suffered “personal Injury” (often referred to as a “frank injury” or “injury simpliciter”), with the first injury occurring on 5 December 2006 and the last on 27 August 2013. The Arbitrator said that on balance, the medical evidence established that each event aggravated, accelerated, exacerbated or deteriorated the degenerative changes in the lumbar spine and the knees, which caused an increase in intensity of the respondent’s symptoms.
The Arbitrator referred to the appellant’s submission that Dr Bodel’s opinion should be rejected because it was based on an incorrect history. The Arbitrator said that in his view, Dr Bodel took a correct history of the injury on 5 December 2006 and the “multiple recurrences” up to the last fall on 27 August 2013, which provided a proper basis for his opinion that those incidents aggravated, accelerated, exacerbated or deteriorated the disease process in the lumbar spine and knees.
The Arbitrator said that Dr Bodel’s opinion in that regard accorded with the opinion of Dr Bruce, in that Dr Bruce concluded that:
(a) the injury on 27 August 2013 was not a substantial contributing factor to the respondent’s condition;
(b) the respondent’s back problems were most likely a naturally occurring condition that has been aggravated by the previous incidents at work, and
(c) the respondent’s knee problems were as a result of naturally occurring osteoarthritis of the knees which was previously aggravated in a series of incidents and falls from 2006.
The Arbitrator considered that because the appellant had conceded a series of events had aggravated the degenerative process, he could disregard Dr Bruce’s opinion on causation. The Arbitrator pointed out that both doctors took a history of a fall in 2006 and subsequent recurrent falls and aggravations up until the 2013 incident. The Arbitrator indicated that while Dr Bodel considered that an MRI scan of the lumbosacral spine on 19 June 2006 showed “definite disc pathology at L4/5 and L5/S1 levels”, there was no report of the scan in evidence and none of the treating doctors, or the medico-legal doctors retained by the appellant, referred to that scan.
The Arbitrator concluded that the radiological investigations and the opinions of the treating doctors, as well as the forensic medical experts together established that the respondent suffers with degenerative disc disease at the L4/5 and L5/S1 levels. The Arbitrator observed that the respondent’s lumbosacral pain extending to the right iliac region was consistent with degenerative changes at those levels and evidenced by the CT and MRI scans and the history of complaints to the treating doctors and the medico-legal experts.
The Arbitrator accepted Dr Bodel’s view that the incidents commencing from December 2006 and occurring up until 27 August 2013 aggravated, accelerated, exacerbated or deteriorated the disease process in the respondent’s lumbar spine and knees. The Arbitrator said that that opinion was consistent with the opinion of Dr Bruce, except that Dr Bruce did not consider the last event in August 2013 to be causative of other than a temporary aggravation. The Arbitrator pointed out that because of the appellant’s concession that it accepted that the respondent suffered injuries to the knees and back, the question of causation was no longer an issue, so that that part of Dr Bruce’s opinion was irrelevant.
The Arbitrator formed the view that nothing turned on the incorrect history recorded by Dr Bodel in relation to the right knee being arthroscoped on 3 March 2011 (which was a left knee arthroscopy). The Arbitrator said that arthroscopies had been performed on both knees, and bilateral total knee replacements had been performed. Further, the multiple bilateral knee investigations revealed medial compartment osteoarthritis and tears of the posterior horns of the medial menisci.
The Arbitrator accepted the opinion of Dr Dixon that the bilateral knee replacements were to address the osteoarthritic change, and accepted the opinions of Dr Bodel, Dr Bruce and Dr Dixon that the respondent suffers from tricompartmental osteoarthritis disease in both knees, and that the numerous incidents aggravated, accelerated, exacerbated or deteriorated that disease process.
The Arbitrator found that the respondent suffered a personal injury within the meaning of s 4(a) of the 1987 Act, being injury to the lumbar spine and knees, which resulted from various injurious incidents in the course of her employment, the first of which was on 5 December 2006 and the last on 27 August 2013. The Arbitrator concluded as follows:
“The medical evidence establishes on balance that each event or incident aggravated, accelerated, exacerbated or deteriorated the degenerative changes in the lumbar spine and the knees in that Ms Balhatchet experienced an increase or intensifying of her symptoms.”[66]
[66] Reasons, [100].
The Arbitrator then turned to the question of whether the impairments in the lumbar spine and both lower extremities (knees) resulted from the same injury within the meaning of s 322(2) of the 1998 Act.
The Arbitrator noted that the respondent submitted that the “same injury” referred to in s 322(2) means the same pathology and that impairments that result from the same pathology were to be assessed together, regardless of whether they resulted from the same or different incidents, relying on Edmed and Wagg. The Arbitrator further noted that the respondent asserted that the “pathology” was the degenerative disease in the respondent’s lumbar spine and both knees, which had been aggravated, accelerated, exacerbated or deteriorated by the incidents. The Arbitrator referred to the appellant’s submission that each separate incident was a personal injury, and the WPI should be apportioned to each. The Arbitrator noted however that the appellant did not submit that the “same Injury” did not mean the “same pathology’.
The Arbitrator reproduced s 322 of the 1998 Act and considered Roche DP’s observations and findings in Edmed, that is that:
(a) the words “the same” must be given their ordinary meaning, which is “identical”;
(b) if injury means pathology, then impairments resulting from the same pathology are to be assessed together, and
(c) Mr Edmed did not suffer the “same injury” because the pathology in the right arm occurring in the first incident was not identical to that the pathology occurring in the second incident.
The Arbitrator applied the principle enunciated in Edmed and found that the degenerative changes in the lumbar spine at L4/L5 and L5/S1 were the same pathology resulting from the same injury. The Arbitrator said that this finding was in accordance with the opinions of Dr Bodel, Dr Bruce and Dr Diwan.
The Arbitrator said that he accepted Dr Bruce’s opinion that a diagnosis of bilateral osteoarthritis was established prior to the last incident and that the falls aggravated the condition. He also said that Dr Bodel’s observations of the MRI scans of the knees was consistent with the MRI scan reports. The Arbitrator accepted Dr Bodel’s opinion, which was consistent with that of Dr Bruce, that the separate incidents aggravated the disease process in the knees. The Arbitrator pointed out that there was no evidence from Dr Dixon about the pathology found during the operative intervention.
The Arbitrator concluded that on the basis of the medical evidence, he was satisfied that the respondent suffered from a degenerative disease of the lumbar spine, particularly at L4/L5 and L5/S1 levels and medial compartment osteoarthritis and degenerative tears of the medial menisci in both knees. The Arbitrator said that this conclusion was supported by the evidence of Dr Dixon as reported to Dr Ravindran and Dr Saunders and to the appellant’s insurer that the respondent suffered from known osteoarthritis of both knees involving the medial compartment. The Arbitrator determined that the pathology in both knees was identical.
The Arbitrator found that:
“the osteoarthritis in the medial compartments of the knees and the degenerative disease process in the lumbar spine is the ‘same pathology’ resulting from the ‘same injury’ within the meaning of s 322(2) of the 1998 Act, and that the impairments are to be assessed together to assess the degree of permanent impairment of the injured worker.”[67]
[67] Reasons, [129].
The Arbitrator proceeded to determine the respondent’s entitlement to weekly payments. He noted that the appellant had paid the respondent weekly payments from 28 August 2013 until 30 December 2013. He further noted that those payments satisfied the respondent’s entitlement for weekly payments pursuant to s 36 of the 1987 Act (the entitlement during the first 13 weeks of weekly payments) and part of the respondent’s entitlement period during the second entitlement period pursuant to s 37 of the 1987 Act. The Arbitrator proceeded to determine the respondent’s weekly entitlement for the remaining period pursuant to s 37 on the basis that at the arbitration, the parties had agreed that the respondent had no capacity for work and the respondent was entitled to weekly payments at the rate of $455.87 per week for the period claimed. He ordered the appellant to pay the respondent $455.87 (80% of the respondent’s pre-injury average weekly earnings) from 31 December 2013 for the remaining period of entitlement pursuant to s 37 of the 1987 Act.
The Arbitrator also found that the respondent’s treatment expenses were reasonably necessary as a result of the injury within the meaning of s 60 of the 1987 Act.
The Certificate of Determination issued on 5 August 2019 records:
“The Commission determines:
1. Matter remitted to the Registrar for referral to an Approved Medical Specialist to assess impairments of the lumbar spine and both lower extremities (knees) that result from the same injury (s 322(2) of the Workplace Injury Management and Workers Compensation Act 1998) together to assess the degree of permanent impairment as a result of injury on 27 August 2013. The following documents are to be sent to the Approved Medical Specialist:
(a)Application to Resolve a Dispute and attached documents;
(b)Reply and attached documents, and
(c)Certificate of Determination issued by the Arbitrator.
2. Respondent to pay the applicant weekly payments of compensation at the rate of $455.87 from 31 December 2013 for the remainder of the second entitlement period pursuant to section 37 of the Workers Compensation Act 1987; noting that the respondent made voluntary payments from 28 August 2013 to 30 December 2013 for the first entitlement period (first 13 weeks) and part of the second entitlement period (14 – 130 weeks).
3. Respondent to pay the applicant’s medical and related treatment expenses in respect of injury to the lumbar spine and both lower extremities (knees) as a result of injury pursuant to section 60 of the Workers Compensation Act 1987.”
GROUNDS OF APPEAL
The appellant brings three grounds of appeal, identified as follows:
(a) Ground One: the Arbitrator gave inadequate reasons for finding that the respondent’s impairments of her knees and back resulted from the same pathology and thus could be aggregated;
(b) Ground Two: there was no evidence, or no adequate evidence to support the finding that the respondent’s impairments of her knees and back resulted from the same pathology and thus could be aggregated, and
(c) Ground Three: there was no evidence that the appellant had agreed that the respondent had no capacity, so that the Arbitrator was required to satisfy himself as to the respondent’s capacity and failed to do so.
LEGISLATION
Section 4 of the 1987 Act relevantly defines “injury” as:
“Definition of ‘injury’
In this Act:
injury
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
…”
Section 322 of the 1998 Act relevantly provides:
“322 Assessment of impairment
(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
…
(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
…”
SUBMISSIONS
Both parties made general submissions before specifically addressing the grounds of appeal.
The appellant’s general submissions
The appellant says that in respect of both grounds one and two the Arbitrator identified the issue to be determined was whether the lumbar spine and the knee injuries were the “same injury” for the purposes of s 322(2) of the 1998 Act and correctly identified that the decision in Edmed was the leading relevant authority on that question. The appellant refers to the Court of Appeal decision in Galluzzo v Little,[68] in which Barrett JA (with Ward JA and Tobias AJA agreeing) described Roche DP’s approach in Edmed to be an “accurate summary” of s 322(3) of the 1998 Act, and that Keating P also approved of that approach in Wagg.
[68] [2013] NSWCA 116, [41].
The appellant contends that the Arbitrator did not correctly apply Edmed or explain his reasons for the conclusions he reached.
The respondent’s general submissions
The respondent refers to her statement as the “primary factual account” in the matter which referred to the numerous injuries between December 2006 and 25 February 2013. The respondent refers to an “aide memoire” which was provided to the Arbitrator as a summary of the evidence. The respondent asserts that the evidence shows that pathology in the back and knees is inextricably linked, in that:
(a) the respondent reported in her statement that her back problem causes the knees to give way;
(b) Dr Ravindran reported an altered walking style due to the back condition;
(c) treatment to the back provided relief in the legs;
(d) Mr Etherington recorded that the respondent had experienced a number of falls caused by her left knee giving way and her back instability;
(e) Dr Dixon reported that a large amount of the respondent’s symptoms were due to the combination of her knees being exacerbated by her back;
(f) Mr Sorensen was of the view that the knee and back problems related to the instability in the sacroiliac joint;
(g) Dr Bodel opined that the respondent suffered from mechanical back pain related to disc pathology which was subsequently aggravated by a number of falls, and
(h) Dr Bruce noted the significant history of low back and knee problems dating from 2006 and the established pattern of recurrent falls and chronic pain in the low back and knees.
The respondent submits that her position is best set out by Dr Bodel, who referred to the aggravation of the disease process by the nature and conditions of the respondent’s work and the various episodes at work. The respondent also says that the deterioration of the osteoarthritis in her knees was as a result of the nature and conditions of her employment.
The submissions as to Ground One: inadequacy of reasons
The appellant’s submissions
The appellant submits that the Arbitrator’s obligation to give reasons imposed by s 294(2) of the 1998 Act requires the Arbitrator to explain the actual reasoning process which in fact led him to arrive at his opinion, so that a court is able to see whether the opinion reached does, or does not, involve an error of law.[69] Further, the reasons must be sufficient to enable a party to exercise their rights to appeal or otherwise contest the decision.[70]
[69] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 (Kocak), [65]; Ali v AAI Limited [2016] NSWCA 110; 75 MVR 502, (Ali) [49].
[70] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (Soulemezis), 270; Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 (Vegan), [23].
The appellant refers to the Arbitrator’s finding that the degenerative changes in the respondent’s lumbar spine were the same pathology resulting from the same injury within the meaning of s 322(2) of the 1998 Act. The appellant submits that the Arbitrator did not explain why he found that the bilateral osteoarthritis of the knees on the one hand, and the degenerative tears in the medial menisci on the other, could be the same pathology.
The appellant refers to these findings and submits that in addition to the above, the Arbitrator did not explain his finding that the osteoarthritis in the medial compartments of the knees was the same pathology as the degenerative process in the lumbar spine and resulted from the same injury within the meaning of s 322(2) of the 1998 Act.
The appellant cites Edmed, where Roche DP observed that for the purposes of s 322(2) of the 1998 Act, the impairments that resulted from the same pathology are to be assessed together even if they result from different incidents, but that the pathology must be identical.[71] The appellant asserts that the Arbitrator recognised that the pathology must be identical, but failed to explain how the pathology in the respondent’s knees and that of her lumbar spine were “identical”. The appellant says that although the Arbitrator referred to the evidence provided by the radiological imaging, there was no explanation as to how to reconcile that evidence with the finding that the pathology was identical for the purposes of aggregation.
[71] Edmed, [39].
The appellant contends that the Arbitrator’s failure to explain his conclusion that the knee pathology was the same, or alternatively that the knee pathology and the lumbar spine pathology was the same is an error of law.
The respondent’s submissions
The respondent refers to this ground of appeal as being limited to an allegation that the Arbitrator failed to provide adequate reasons and the appellant does not complain that there was an error of fact, law or discretion in the conclusion the Arbitrator finally reached. The respondent submits therefore that the Arbitrator’s ultimate conclusion is irrelevant, and that the only issue for the Presidential member to determine is whether the reasons were adequate.
The respondent says that the requirement to give reasons depends upon the decision making context, which for the Commission is set out in s 294 of the 1998 Act. That is, a brief statement is required setting out the reasons for the decision. The respondent says that r 15.6 of the 2011 Rules requires the statement of reasons to include findings of fact, the Commission’s understanding of the law, and the reasoning process. The respondent points out that the Commission is a specialist tribunal. The respondent relies on the Presidential decision in Liverpool City Council v Trovato[72] in which Deputy President Fleming observed that:
“An Arbitrator need not set out lengthy written reasons in order to comply with the Act and the Rules. To do so would be unreasonable and inconsistent with the objectives of the Commission in providing a speedy resolution to workers compensation disputes.”[73]
[72] [2004] NSWWCCPD 15 (Trovato).
[73] Trovato, [57].
The respondent contends that the Arbitrator clearly set out his understanding of the facts and the law and exposed his reasoning process. The respondent refers to the Arbitrator’s recitation of the history of injuries and detailed accounts of the various occasions at work when the respondent experienced symptoms in her low back and lower extremities. The respondent says that the Arbitrator proceeded to set out the evidence before him which the respondent says the Arbitrator correctly understood. Further, the respondent says, the Arbitrator correctly identified the issues he was required to determine.
The respondent submits that the Arbitrator summarised the submissions of both parties and correctly reviewed the relevant authorities before expressing his conclusion that each event aggravated, accelerated, exacerbated or deteriorated changes in the respondent’s lumbar spine and knees. The respondent refers to the Arbitrator’s application of Edmed and Wagg, which the respondent submits were correctly applied in arriving at the conclusion that the pathology should be aggregated, notwithstanding that the pathology arose as a consequence of a long course of episodes.
The respondent submits that the Arbitrator arrived at his conclusion that the worker had suffered a personal injury pursuant to s 4(a) of the 1987 Act and did so on the basis of the evidence of Dr Bodel, Dr Bruce and Dr Dixon. The respondent submits that the evidence of those experts led to the finding that the respondent suffered from bilateral tri-compartmental osteoarthritis disease in the knees, which was aggravated by the work related events.
The respondent refers to the appellant’s complaint that the Arbitrator did not explain how the osteoarthritic condition in the respondent’s knees and the bilateral degenerative tears are the same pathology. The respondent submits that the fact that the pathology is multifactorial (even if it exists in discreet body parts) does not detract from it being identical pathology. The respondent contends that the concept of identical pathology means that the same pathology exists across time, even though the pathology is getting worse over time with each incident. As an example, the respondent refers to a worker having developed carpal tunnel syndrome, first in one limb and then in the other, as a result of the same factual cause. The respondent submits that in those circumstances, the worker’s WPI is not assessed separately for each limb. The respondent asserts that the mere fact that she has osteoarthritic changes and also tears does not render the pathology different, and neither does the fact that the respondent’s knees and back were both injured.
The appellant’s submissions in reply
In reply, the appellant submits that it is not necessary to establish an error in the Arbitrator’s conclusion in circumstances where there is an inadequacy in the reasoning process. The appellant contends that the failure to give adequate reasons is, in itself, an error of law. The appellant refers to Allianz Australia Insurance Ltd v Ward[74] as authority to say that the reasons must establish that “the issues raised … have been determined and that any relevant statutory requirements have been considered.” The appellant asserts that the Arbitrator did not do this and that the respondent’s submissions as to the correctness of the decision misses the point. The appellant says that the point is not whether the respondent can give reasons why the Arbitrator’s decision was correct, it was a matter for the Arbitrator to do so. The appellant maintains that the Arbitrator did not explain why the apparent different pathologies of bilateral osteoarthritis and bilateral tears in the respondent’s knees were the same pathology and did not explain why the different pathologies in the knees and the lumbar spine were the same. The appellant further maintains that this was the error of law.
As to Ground Two: no evidence or inadequate evidence to support the finding
[74] [2010] NSWSC 720; 57 MVR 327, [40].
The appellant’s submissions
The appellant contends that there was no evidence that the knee and spine pathologies were the same, or that they resulted from the same injury, and nor was there evidence that the pathology affecting each of the respondent’s knees was the same pathology. The appellant asserts that the Arbitrator thereby erred in law in arriving at his determination. In the alternative, the appellant asserts that the Arbitrator erred in fact in making that determination because there was insufficient evidence to support the finding.
The appellant submits that the evidence is that the back pathology occurred before the knee pathology as a result of different incidents and were different pathologies. The appellant refers to the first injurious event on 5 December 2006. The appellant says that this injury did not involve injury to the knees, nor did the respondent claim that she did, and the Arbitrator found that in that incident the respondent injured her back, right hip and stomach.
The appellant says that the Arbitrator accepted that the respondent suffered from a degenerative disease in her lumbar spine and osteoarthritis and degenerative tears of the medial menisci in both knees and found that the events or incidents at work aggravated, accelerated, exacerbated or deteriorated the disease process. The appellant submits however, that the Arbitrator did not state that the condition in the lumbar spine and the knees were the exact pathology that “contributed to” the injuries being assessed together.[75] The appellant observes that on the face of the evidence, the pathologies are different.
[75] Appellant’s submissions, [43].
The appellant maintains that there was no evidence to support the Arbitrator’s finding that the pathologies in the back or knees were identical or to support the finding that the different knee conditions were the same pathology. The appellant submits that, alternatively, any such evidence was inadequate.
The appellant contends that the respondent’s claim was “marked by a lack of evidence and by inadequate pleadings”. It asserts that there was a lack of contemporaneous support such as claim forms or any documentation to support the assertions made by the respondent in her statement in relation to injuries occurring between 2010 and 2012 and injuries from February 2013 to May 2013.
The appellant refers to the arbitral decision of Bukvic v Willoughby Council,[76] in which Arbitrator Rimmer observed that it is generally only where the injury is to the same body part that the pathology can be said to be identical, and that even then, the same pathology must be clearly identified in the body part. The appellant says that the facts of that case were that the worker first suffered injury by way of a medial ligament strain, a medial meniscal tear and aggravation of pre-existing osteoarthritis of the knee, subsequent to which the work activity contributed to the disease process in the worker’s knee. The Arbitrator concluded that the only part of the pathology that was the same for the purposes of aggregation of the impairments was the aggravation of the osteoarthritic condition. The appellant submits that this approach should be preferred, and in the present case, the Arbitrator did not approach the question of whether the pathology was the same with the same precision. The appellant points out that it is difficult to see how a back injury and a knee injury could be capable of having the same pathology and submits that the evidence in this case was that they were not the same pathology.
[76] [2018] NSWWCC 80 (Bukvic).
The appellant concludes its submissions by maintaining that the Arbitrator erred in his findings, firstly that the pathology in the knees were the same and, secondly, that the pathology in the knees and lumbar spine were the same.
The respondent’s submissions
The respondent submits that it is simply not the case that there was no evidence or an inadequacy in the evidence to support the aggregation of the respondent’s WPI. The respondent points to the evidence summarised in her “aide memoire” which she says establishes the connection between the back and knee injuries.
The respondent refers to the appellant’s criticism of the pleadings and contends that her case does not rise and fall on whether the pleadings constituted a pleading exemplar, particularly so when injury was admitted. The respondent submits that the Arbitrator correctly recognised that the pleadings incorporated the respondent’s statement evidence so that all relevant dates were pleaded.
The respondent disputes that Bukvic does not create a rule that only the same body part is assessed as the same pathology. The respondent contends that Bukvic is not binding and is distinguishable on the facts. The respondent submits that Arbitrator Rimmer determined that there were a number of different pathologies after each accident. The respondent says that in Bukvic, the worker was involved in both a lifting incident and a car accident in which the worker injured his back in one incident and his neck in the other.
In response to ground three of the appeal, the respondent makes a submission in response to the appellant’s allegation of lack of contemporaneous support for the injuries, which is more appropriately dealt with under this ground.[77] The respondent refers to the appellant’s submission that there was an absence of evidence such as claim forms to support the respondent’s allegations, and submits that those documents were “uniquely in the provenance of the appellant”[78] and could have been tendered if they were evidence that went to any genuine issue.
[77] Respondent’s submissions, [20].
[78] Respondent’s submissions, [20].
The appellant’s submissions in reply
The appellant indicates that the “aide memoire” is not evidence, and maintains that in any event, the evidence does not support the finding that the pathology was identical.
The appellant notes that the respondent seeks to distinguish Bukvic merely on the basis that the decision was not binding. The appellant contends that the reasoning in Bukvic is compelling. The appellant says that it is consistent with, and builds upon, Roche DP’s reasoning in Edmed, which was binding on the Arbitrator.
The appellant submits that in Edmed, the Deputy President clearly had in mind that injuries to different body parts were different injuries and pathologies, and contrasted the position where a worker suffered injuries to different body parts in the same incident and where a worker suffers an injury that is the same pathology in different injurious events. The appellant maintains that in the latter situation, the pathology must be identical.
The appellant concludes that the Arbitrator erred in not following, or misconstruing the decision in Edmed and Bukvic, and that there was no evidence to support the finding that the respondent’s impairments of her knees and back resulted from the same pathology so that they could be aggregated.
As to Ground three: the weekly payments decision
The appellant’s submissions
The appellant submits that the Arbitrator made a decision to award the respondent weekly payments on the misconception that the appellant had agreed that the respondent had no capacity for work at the relevant time. The appellant says that there was no such agreement and no evidence of that agreement. The appellant contends that in making that decision, the Arbitrator erred in law. The appellant submits that the Arbitrator further erred by not satisfying himself that the respondent had no capacity for work during the period of weekly entitlements claimed.
The respondent’s submissions
The respondent submits that the only issue of substance in the case before the Arbitrator was the wording of the referral to the AMS. The respondent asserts that even in a court of strict pleadings, parties at times abandon the weaker parts of their case at trial, so that just because something is pleaded does not mean that it requires judicial determination. The respondent gave examples of when that might occur in another jurisdiction. The respondent points out that her statement evidence was not challenged, and the appellant’s counsel did not advance a submission that the worker had capacity. The respondent says that therefore it could not be expected that the Arbitrator would determine the issue.
The respondent contends that the Arbitrator attempted to identify the issues requiring determination, and that the appellant’s response did not make any reference to weekly compensation.[79] The respondent submits that in any event, there appeared to be a concession by the appellant that weekly payments were payable, and refers to the transcript of the first day of arbitration where there was an exchange between the Arbitrator and the appellant, in which counsel for the appellant submitted in relation to the period during which the respondent had been paid and the date from which weekly payments would be payable.[80] The appellant says that there was no qualification that the weekly payments would be payable in the event that there was a determination in favour of the respondent in respect of capacity for work. The respondent says that in fact, the appellant only referred to the weekly payments claim in his closing submissions, which was only a passing summary of what had been claimed by the respondent.[81]
[79] Transcript of Proceedings (T1), Balhatchet v Secretary, Department of Education [2019] NSWWCC 263; Arbitrator Edwards, 12 July 2019, T1 7.11–21.
[80] T1 3.2–28.
[81] T2 27.2–8.
The respondent asserts that while ground three is framed as a “no evidence” ground, the evidence is not relevant, and it is a case of how the proceedings below were conducted.
The appellant’s submissions in reply
The appellant denies that it implicitly conceded that the respondent had no work capacity. The appellant asserts that the discussion recorded in the transcript was limited to a discussion about the relevant dates of the second entitlement period and not about whether the respondent had an entitlement to weekly payments or about her capacity.
The appellant asserts that the respondent’s submissions that a matter not pleaded does not have to be the subject of determination, and that no submissions as to capacity were made at the arbitration, are not to the point. The appellant says that these points do not overcome the error of law made by the Arbitrator when making a finding for which there was no evidence.
The appellant points out that the Arbitrator identified that there was an issue in respect of the respondent’s entitlement to weekly payments which indicates that the entitlement to weekly payments was in contention. The appellant submits that in order to determine that issue, the Arbitrator was required to determine whether the respondent had current work capacity during the period claimed within the meaning of s 37 of the 1987 Act. The appellant contends that this was a statutory pre-condition to the worker’s entitlement, and the Arbitrator was required to make that determination, irrespective of whether the issue was seriously agitated.
The appellant asserts that in the circumstances of there being no such concession by the appellant and no determination as to the respondent’s capacity, the Arbitrator exceeded his jurisdiction in making the determination.
The relief sought
The appellant seeks the following orders:
(a) to the extent that it is necessary, leave be granted to appeal an interlocutory decision;
(b) the dispute about the respondent’s entitlements to weekly payments be remitted to a different arbitrator for determination, and
(c) the claim in respect of the respondent’s WPI be remitted to the Registrar for referral to an AMS for an assessment of the degree of permanent impairment, with the assessment to be apportioned between the dates of injury pleaded in the ARD.
The respondent seeks the following relief:
(a) leave to appeal should be refused;
(b) the appeal be dismissed as incompetent, or
(c) if the appeal is successful, the issues requiring determination be referred to a different Arbitrator for re-determination.
DISCUSSION
How the case was conducted before the Arbitrator
The respondent’s submissions at arbitration were that the knee conditions and the lumbar conditions were inextricably linked because of the evidence of:
(a) the respondent’s walking style with altered gait;
(b) the sacroiliac joint instability contributing to the falls, and
(c) according to Dr Diwan, the right leg radicular pain emanated from the low back.
Those submissions were made to support the respondent’s case that her injuries should be classed as a “nature and conditions” claim or a “disease” injury. There was no suggestion that the respondent intended to amend her claim to include an allegation that the respondent suffered from conditions that were consequential to the actual injuries suffered.
The alternate submission made in respect of how the various injuries could be aggregated, if they were personal injuries within the meaning of s 4(a) of the 1987 Act, was that they were the “same pathology”, that is an aggravation of a disease in the lumbar spine and both knees.
The appellant’s case was that the conditions did not arise out of the same incident, and it was necessary to identify which body parts were injured in which injury.
It was of little assistance to the Arbitrator that the appellant conceded that the respondent had injured her back and knees in a number of incidents. The concession was put generally and did not go so far as to concede that each body part was injured in each incident. In fact, the submissions made by the appellant during the arbitration were to the contrary.
The Arbitrator identified the issues for determination at the commencement of the arbitration and reiterated those issues in his statement of reasons attached to the COD.
The first identified issue he was required to determine was whether the injury suffered by the respondent:
(a) was caused by the nature and conditions of her employment, or
(b) could be classified as a “disease injury” within the meaning of s 4(b) of the 1987 Act, or
(c) was a personal injury within the meaning of s 4(a) of the 1987 Act.
The Arbitrator rejected the respondent’s allegation that she was injured over time as a consequence of the nature and conditions of her work, and that the injury was a disease within the meaning of s 4(b)(ii) of the 1987 Act.[82] He determined that the respondent suffered a number of personal injuries in the course of her employment, commencing in December 2006 and up to and including August 2013.[83] Those findings have not been challenged on appeal.
[82] Reasons, [99].
[83] Reasons, [92].
Although the submissions made by the appellant at arbitration referred to evidence that suggested that not all of the body parts claimed were injured in the same incidents, the Arbitrator was not referred to s 322(3) of the 1998 Act and he did not consider that subsection. That subsection provides that where different body parts are injured in the same incident, the impairments are to be assessed together.
The Arbitrator proceeded to consider the respondent’s argument that the impairments of each body part could be aggregated in accordance with s 322(2) of the 1998 Act. As was discussed in Edmed, s 322(2) permits the aggregation of impairments that result from the same injury, that is the same pathology, to be assessed together.
The Arbitrator considered the decision in Edmed and noted that the “same” pathology means “identical” pathology. The Arbitrator observed that Roche DP found that although the two injuries suffered by the worker involved the same body part (left elbow), the injury (pathology) was different, so that the impairments could not be aggregated.
The Arbitrator proceeded to find that the degenerative changes in the respondent’s lumbar spine at the L4/5 and L5/S1 levels was the same pathology. The Arbitrator referred to the opinions of Dr Bodel and Dr Bruce that each event aggravated, accelerated, exacerbated or deteriorated the respondent’s lumbar degenerative disease at those levels. He also took into account the results of the radiological investigations, the respondent’s complaints to various medical experts of low back pain and the evidence of Dr Diwan.
The Arbitrator accepted the diagnosis of bilateral osteoarthritis of the knees and that the condition was aggravated by a number of falls. He also accepted that the separate events aggravated the disease.
Having identified the pathology in the lumbar spine and in both knees, the Arbitrator proceeded to find that the osteoarthritis condition in both knees and the degenerative condition in the lumbar spine was the “same pathology” resulting from the “same injury” within the meaning of s 322(2) of the 1987 Act.
The appeal
The respondent’s general submission in this appeal is that the Arbitrator’s decision was correct because the evidence, which is said to be best set out in the report by Dr Bodel, establishes that the deterioration in the degenerative condition resulted from the nature and conditions of employment. In the light of the Arbitrator’s unchallenged finding that the injury was a series of personal injuries pursuant to s 4(a) of the 1987 Act, this submission is of no assistance.
Ground One: did the Arbitrator provide adequate reasons for his conclusion that the pathology was the same?
The appellant complains in ground one of this appeal that the Arbitrator failed to provide adequate reasons for making that determination. The appellant’s submissions are summarised above at [117]–[121] and [128].
Both parties submit on the statutory requirements and the relevant authorities in relation to the duty to give reasons.[84]
[84] Kocak, Ali, Soulemezis, Vegan, Trovato.
The respondent submits that:
(a) the Arbitrator’s recitation of the history of injuries;
(b) the accounts by the respondent of the occasions when she experienced symptoms in the low back and knees, and
(c) the Arbitrator’s reliance on the diagnoses proffered by the medical experts,
was a sufficient exposition of his reasons.
The respondent does not indicate how it is that the respondent’s report of symptoms, the different diagnoses and the identification of occasions upon which those body parts were injured assisted the Arbitrator in reaching his conclusion. A consideration under s 322(2) of the 1998 Act requires a consideration of not only the medical diagnoses, but also reasons for arriving at the conclusion that the pathology is the same.
The respondent’s submission that an aggregation of the impairment of the knees is analogous to a case of carpal tunnel syndrome, where symptoms in the relevant body parts may not have presented at the same time is rejected. It is well established that carpal tunnel syndrome is considered a disease of gradual onset (s 4(b)(i) of the 1987 Act) with a deemed date of injury.[85] In the present case, the Arbitrator determined that this was not a “disease” case and that the lumbar spine and knee conditions did not arise as a result of the “nature and conditions” of employment.
[85] Perry v Tanine Pty Ltd t/as Ermington Hotel [1998] NSWCC 14; 16 NSWCCR 253.
The Arbitrator referred to the radiological evidence, the medical opinions and the complaints by the respondent to her treatment providers. That evidence was relevant to the question of whether the respondent’s different body parts were injured in the same event for the purpose of s 322(3), rather than evidence establishing that the pathology was identical in accordance with s 322(2).
The Arbitrator determined the relevant pathologies in each body part and pointed to the evidence that supported those diagnoses. Despite the fact that each knee was diagnosed as medial compartment osteoarthritis with degenerative tears, the Arbitrator did not explain how he reached his conclusion that the pathology in two different body parts (the left knee and the right knee) could be considered to be the same pathology. Nor did the Arbitrator explain how the osteoarthritic condition and degenerative tears in the knees constituted the same pathology as degenerative changes in another body part (the lumbar spine).
In the context of the Commission, while an arbitrator is not required to provide lengthy reasons, he or she must give sufficient reasons to show the process that was followed to arrive at his or her conclusions. In this case, where there were distinct pathologies associated with each body part, the issue between the parties was critical and the reasoning process did not explain or did not adequately explain the Arbitrator’s conclusion.
The duty to give reasons must be considered in the context of the decision making process. The extent and content of the reasons will depend on each case and the issues for consideration, but it is essential to expose the reasoning on a critical point in the contest between the parties.[86] The Arbitrator is required to do justice to the issues posed by the parties.[87]
[86] Abdel Naser Qushair v Naji Raffoul [2009] NSWCA 329.
[87] Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, [59]) per McColl JA .
A failure to give reasons or adequate reasons is an error of law. The appellant has established the requisite error on the part of the Arbitrator. It follows that Ground One of the appeal succeeds.
Ground Two: was there evidence to support the finding?
Given that the first ground of appeal succeeds, the finding that the pathology in each knee and lumbar spine is the same in accordance with s 322(2) of the 1998 Act must be revoked. It is therefore not necessary for me to consider this ground of appeal. Additionally, in the circumstances where the matter is to be remitted to another arbitrator for determination of the issue, it is also not appropriate for me to determine whether there was sufficient evidence to support such a finding. I therefore decline to consider this ground of appeal.
Ground Three: the weekly payments decision
The appellant contends that there was no agreement that the respondent had no capacity for work and that the Arbitrator erred by proceeding on that misconception and awarding the respondent weekly payments on the basis of no capacity. The appellant says that the Arbitrator was required to satisfy himself that there was no capacity for work.
The respondent argues that the appellant made no submissions about the respondent’s capacity and in those circumstances, the Arbitrator was not expected to determine the issue. The respondent submits that the discourse between the Arbitrator and the appellant’s counsel inferred that there was no issue about the respondent’s capacity.[88]
[88] T1 3.2–28.
The question of whether the respondent was entitled to weekly payments was identified as an issue at the arbitration and in the statement of reasons attached to the COD.
There is no reference in the transcripts of the proceedings before the Arbitrator of any such agreement or concession. The transcripts do disclose that neither the appellant nor the respondent made any submissions relevant to the degree of capacity of the respondent or how any weekly award should be calculated. The extent of the agreement as recorded in the transcript was limited to the identification of the period during which payments should be claimed and the calculation of 80% of the pre-injury average weekly earnings. It cannot be inferred from that conversation that there had been an agreement about the respondent’s capacity.
The respondent does not assert and the appellant does not concede that such a concession was made which was not recorded, such as in the conciliation phase or at the telephone conference. In the face of:
(a) the appellant’s denial that such a concession was made;
(b) the absence of any tangible evidence to show that such a concession was made, and
(c) the arbitrator’s references that it was an issue to be determined,
it must be accepted that there was a dispute about weekly payments that required determination.
Despite the absence of assistance by submissions from the parties in relation to the dispute, it was incumbent upon the Arbitrator to refer to evidence and provide a legislative basis for finding that the respondent had no capacity for work in accordance with s 37 of the 1987 Act.
It follows that this ground of appeal also succeeds.
Other matters
The ARD refers to only five of the numerous incidents that occurred during the course of the respondent’s employment and made only a global reference to the body parts injured, without reference to which body parts were injured in each event. The ARD simply referred to details that were said to be contained in the respondent’s statement and the medical evidence. The respondent’s statement referred to 12 incidents, including incidents in February 2008, and on 23 August 2010 and 30 April 2012, in which she did not indicate what injury occurred, and on 19 March 2013 where the respondent identified injury to her knee, without clarifying which knee was injured. It was therefore necessary to resort to the histories taken by the numerous treatment providers and medico-legal experts in order to attempt to identify the relevant dates of injury for each body part.
This broad brushed approach may have been because the respondent’s primary argument was that the injury resulted from the “nature and conditions” of the respondent’s employment. The difficulty with such an approach is that in the alternative, it was alleged that separate and distinct personal injuries were said to be causative, which required identification of each injury alleged.
The manner in which the respondent’s case was pleaded and presented was totally inadequate.
CONCLUSION
The appeal is successful in respect of grounds one and three. The issues as to whether the respondent can aggregate her impairments, and whether the respondent has no work capacity in accordance with s 37 of the 1987 Act require re-determination.
The parties have not made submissions in relation to the respondent’s capacity either to the Arbitrator or on appeal. The issues requiring determination require factual conclusions to be made. It is therefore appropriate that the matter is remitted to another Arbitrator for re-determination.
DECISION
The Certificate of Determination dated 5 August 2019 is revoked.
The matter is remitted for re-determination by another arbitrator.
Elizabeth Wood
DEPUTY PRESIDENT
6 February 2020
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