Sedrak v Rooty Hill RSL Club Ltd

[2014] NSWWCCPD 40

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Sedrak v Rooty Hill RSL Club Ltd [2014] NSWWCCPD 40
APPELLANT:	Maged Makary Sedrak
RESPONDENT:	Rooty Hill RSL Club Ltd
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-15302/12
ARBITRATOR:	Ms L Ashford
DATE OF ARBITRATOR’S DECISION:	7 March 2014
DATE OF APPEAL DECISION:	30 June 2014
SUBJECT MATTER OF DECISION:	Claim for weekly compensation in addition to payments being voluntarily made at the maximum statutory rate; whether worker entitled to two separate payments of weekly compensation for two injuries; Cordina Chicken Farms Pty Ltd v Thoa Hong Le [2008] NSWWCCPD 125 discussed and applied
PRESIDENTIAL MEMBER:	Acting President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Carroll & O’Dea Lawyers
Respondent:	HWL Ebsworth Lawyers
ORDERS MADE ON APPEAL:	1.     The Arbitrator’s determination of 7 March 2014 is confirmed. 2.     Each party is to pay his or its own costs of the appeal.

INTRODUCTION

1. This appeal concerns a claim for additional weekly compensation in circumstances where the worker was already in receipt of voluntary payments of weekly compensation at the maximum statutory rate. The essential issue is whether the worker established that he suffered two separate and distinct incapacities as a result of an injury to his neck and a separate injury to his back.

BACKGROUND

1. The appellant worker, Maged Sedrak, worked for the respondent employer, Rooty Hill RSL Club Ltd (the Club), as a kitchen hand from April 1999 until 2 September 2008. It is not disputed that his duties were heavy and arduous and required him to regularly lift, among other things, 20 litre containers of oil. In the course of his employment, he suffered various incidents affecting his cervical spine (neck) and lumbar spine (back).

2. Mr Sedrak’s case before the Arbitrator was that he suffered only two relevant injuries and was entitled to two separate payments of weekly compensation. The first injury was an injury to his neck, which, because of the disease provisions, was deemed to have happened on 29 April 2003 (the neck injury/cervical spine injury). The second was an injury to his back on 24 July 2007, which counsel described at the arbitration as a “frank injury” (the back injury/lumbar spine injury).

3. The Club’s case was that Mr Sedrak suffered an aggravation injury to both his neck and his back caused by the nature and conditions of his employment up to September 2008 and that he was being paid the maximum statutory rate of weekly compensation for the effect of those injuries.

4. After the neck injury, Mr Sedrak had various periods off work and ultimately returned to work on light duties. He continued those duties until they were withdrawn on 2 September 2008. A dispute arose as to Mr Sedrak’s entitlement to compensation for his neck injury that resulted in him bringing proceedings in the Commission in 2009. That application was resolved, by consent, with an award in Mr Sedrak’s favour on 8 September 2009 for the payment of weekly compensation of $125 per week from 1 June 2004 to 23 July 2007 and from 5 August 2007 to 1 August 2008.

5. Meanwhile, from 2 September 2008, the Club’s insurer, Allianz Australia Workers Compensation (NSW) Ltd (Allianz), had commenced paying Mr Sedrak weekly compensation at the maximum statutory rate for a worker with a dependant spouse and child in respect of total incapacity. Whether these payments were for the back injury only, as Mr Sedrak contended, or the combined effect of the back injury and the neck injury, or some other combination of injuries, as the Club contended, was the subject of submissions at the arbitration.

6. On 2 November 2010, Mr Sedrak claimed additional weekly compensation for his neck injury.

7. On 19 January 2011, Allianz issued a s 74 notice disputing Mr Sedrak’s entitlement to any additional weekly compensation on the ground that:

   “you are currently receiving the maximum amount of weekly benefits compensation to which you are entitled as you have no entitlement to receive separate payments of weekly benefits compensation in respect to the injury sustained on 29 April 2003 and in respect to the injury sustained on 24 July 2007 as each injury independently results in you being totally unfit for work and each injury also contributes to a single incapacity.”

8. Later in 2011, Mr Sedrak claimed lump sum compensation for a whole person impairment due to his neck injury. This claim was referred to Dr John Beer, Approved Medical Specialist (AMS), for assessment based on a deemed date of injury of 29 April 2003. On 16 December 2011, Dr Beer issued a Medical Assessment Certificate in which he assessed Mr Sedrak to have compensable whole person impairment in respect of his neck injury of 25 per cent.

9. On 26 April 2012, the parties filed consent orders for the payment of lump sum compensation consistent with Dr Beer’s assessment, plus $28,750 for pain and suffering, reasonably necessary hospital and medical expenses and costs.

10. Also in 2011, but in separate proceedings, Mr Sedrak claimed lump sum compensation in respect of his 24 July 2007 back injury. After an assessment by an AMS, and a subsequent appeal to a Medical Appeal Panel, the parties settled this claim for the amount assessed by the Medical Appeal Panel. They filed consent orders with the Commission on 18 April 2012 providing for an award for Mr Sedrak under s 66 in the sum of $14,437.50 in respect of a 10 per cent whole person impairment as a result of injury to Mr Sedrak’s lumbar spine “which notionally occurred on 24 July 2007”, plus $11,250 for pain and suffering.

11. In an Application to Resolve a Dispute (the Application) filed with the Commission on 28 November 2012, Mr Sedrak sought weekly compensation from 2 September 2008 to 31 December 2012 due to the injury to his cervical spine, arms and shoulders on 29 April 2003. Though it was not stated in the Application, it is accepted that the claim was for weekly compensation in addition to the weekly compensation being voluntarily paid by Allianz.

12. The Club’s Reply, filed on 15 January 2013, disputed liability on the ground stated in the s 74 notice, namely, that Mr Sedrak suffered a single incapacity and was being paid on the basis that he was totally incapacitated. The Reply also disputed liability for the pleaded injury to Mr Sedrak’s cervical spine, both arms and shoulders, but admitted that he suffered a back injury on 24 July 2007.

13. Given the history of the matter, the denial that Mr Sedrak had injured his cervical spine, shoulders and right arm on 29 July 2003 was surprising. Nevertheless, the denial of liability for the cervical spine injury seems to have provided the basis for submissions at the arbitration on the issue of injury and for the Arbitrator’s decision that injury was in issue (T13.7 – 4 March 2014). (Had the Arbitrator not found that injury was in issue there would have been no basis for her order that the Club pay Mr Sedrak’s costs of the arbitration.)

14. At the arbitration on 12 February 2014, counsel for the Club, Mr Stuart Grant, submitted that the incapacity for which Allianz was paying voluntary weekly compensation was the incapacity “both for the cervical spine and the lumbar spine” (T4.6) and that Mr Sedrak had no further entitlement to such compensation. He said that Mr Sedrak had to demonstrate that he suffered separate injuries and separate and distinct incapacities.

15. Mr Grant contended that there was only one cause of action, with two separate consequences, one to the neck and one to the back. He said that both related to an aggravation of degenerative changes by a disease process caused by the nature and conditions of Mr Sedrak’s duties (over the whole period of his employment with the Club) and that the incapacity that related to the neck was “intermingled” (T15.31) with the incapacity that related to the lumbar spine.

16. Counsel for Mr Sedrak, Mr Harrington, submitted that the worker had suffered separate injuries, namely, an injury to his neck on 29 April 2003 and an injury to his back on 24 July 2007 and that those injuries resulted in two separate incapacities that entitled Mr Sedrak to additional weekly compensation in addition to the voluntary payments Allianz was already making.

17. In a reserved decision, delivered orally on 4 March 2014, the Arbitrator found (at T11.10) that Mr Sedrak suffered an injury to both his cervical spine and lumbar spine. She said it was necessary to determine whether those injuries resulted in one incapacity or two. After reviewing the evidence, the Arbitrator concluded that there was an “intermingling” of Mr Sedrak’s symptoms leading to a single incapacity for employment. He therefore had no entitlement to two awards or payments of weekly compensation.

18. The Arbitrator’s formal findings were, at T12.18:

    (a)     Mr Sedrak sustained injury to his cervical spine in the course of his employment with the Club on 24 October 2001 and again on 29 April 2003 and as a result of the nature and conditions of his employment with the Club up to September 2008;

    (b)     Mr Sedrak sustained injury to his lumbar spine in the course of his employment with the Club on 27 February 2004 and in March 2007 and 24 July 2007 and as a result of the nature and conditions of his employment with the Club up to September 2008;

    (c)     Mr Sedrak’s incapacity resulting from injury to his cervical spine was not separate and distinct from the incapacity resulting from the injury to his lumbar spine, each of which were (sustained) in the course of his employment with the Club, and

    (d)     Mr Sedrak was in receipt of voluntary payments of compensation at the (maximum) statutory rate for a worker with a dependant wife and one child.

19. The Commission issued a Certificate of Determination on 7 March 2014 in the terms of the Arbitrator’s finding, but with an additional order that the Club pay Mr Sedrak’s costs, with a 20 per cent uplift for complexity.

20. Mr Sedrak has appealed the determination of 7 March 2014. For the reasons explained below, the appeal is unsuccessful.

ON THE PAPERS

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 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.”

2. Having 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.

ISSUES IN DISPUTE

1. Though experienced counsel appeared for Mr Sedrak at the arbitration, his solicitor, David Jones, prepared the submissions on appeal. The issues in dispute in the appeal are whether the Arbitrator erred in:

   (a)     finding that Mr Sedrak’s two injuries did not result in two separate and distinct incapacities;

   (b)     her “assessment that the injury to the back and neck occurred as a result of the nature and conditions of employment when this issue was not a matter in dispute before the Arbitrator”, and

   (c)     in her assessment that there were not two distinct and separate incapacities flowing from the injury to the cervical spine as a result of the injury in April 2003 and the lumbar spine as a result of the injury in July 2007.

SUBMISSIONS

1. Mr Jones submitted that it seemed the Arbitrator’s finding that Mr Sedrak suffered injuries to his cervical spine and lumbar spine as a result of the nature and conditions of his employment was a “determining factor” in her decision. He said that, in relation to the lumbar spine, “this was not an issue litigated” before the Arbitrator, as it was accepted by the Club that Mr Sedrak “sustained injury on 27 February 2004 [sic] and had accepted liability and paid ongoing compensation in respect of that injury”.

2. In relation to the cervical spine, Mr Jones said that the “precipitating injury, whether the nature and conditions of employment played a factor or not, was the injury of 29 April 2003 from which there was a binding medical panel decision that [Mr Sedrak] suffered 25% whole person impairment”.

3. To avoid any misunderstanding about the submissions made by Mr Jones, I will set out his essential point exactly as it appears at [16] of his written submissions. Mr Jones contended, essentially as had Mr Harrington at the arbitration (see T36.9–13), that:

   “16. The injury to the lumbar spine affects the lower back and lower limbs. The injury to the cervical spine affects the neck and upper limbs, clearly distinct and separate injuries and create distinct and separate incapacities.”

4. Mr Jones added, at [17]–[18]:

   17. The injury to the cervical spine affects [Mr Sedrak’s] ability to use his arms above shoulder height, in lifting heavy weights, repetitive movements of the arm or working with the head in a flexed or static position.

   18. The injury to the lumbar spine affects [Mr Sedrak] in respect of sitting, standing, bending from the waist, walking long distances etc.”

5. Mr Jones conceded that there would be “some overlap”, as there would be with any incapacity, but submitted that “the injuries and incapacities flowing from those injuries are distinct and create separate incapacities”.

6. Last, Mr Jones submitted that the Arbitrator erred in her assessment that the injury to the back and neck occurred as a result of the nature and conditions of employment because that issue was not a matter in dispute. He said that, on the evidence, Mr Sedrak was entitled to two concurrent awards of weekly compensation.

7. The Club’s solicitor, Mr Scott Murray, submitted that Mr Sedrak had two operating defects contributing to his incapacity making his labour unsaleable, each of which featured in the medical material from the period immediately prior to the commencement of his claim in September 2008.

8. He contended that separating the incapacity resulting one from the other would be an impossible task making proof of a separate and distinct incapacity pertaining to the cervical spine effectively impossible. He noted that, sometimes, leading up to September 2008, Mr Sedrak’s lumbar spine was the central focus of his treatment but, at other time, his cervical complaints “took centre stage”.

9. Mr Murray submitted that the Arbitrator referred to Mr Sedrak’s complaints to various doctors from 2001 onwards and the “mixing” of those complaints. He said that the medical evidence of incapacity resulting from them was well demonstrated by a consideration of the medical certificates issued by Mr Sedrak’s general practitioner, Dr Rezk, in August 2008.

DISCUSSION AND FINDINGS

1. I do not accept Mr Jones’ submissions.

2. I accept that, given the history of the matter, it was not open to the Club to dispute the injury to Mr Sedrak’s cervical spine on 29 April 2003. That being so, and given that the Club accepted liability for the back injury of 24 July 2007, it is difficult to see how Mr Grant could argue that the cause of action related to an aggravation of degenerative changes by a disease process caused by the nature and conditions of Mr Sedrak employment between April 1999 and September 2008. That is especially so in circumstances where there was no persuasive evidence to support that submission.

3. It is for applicants to plead their claims in the Commission (NSW Police Force v Gurnhill [2014] NSWWCCPD 12 at [114], applying Strasburger Enterprises Pty Ltd t/as Quix Food Stores v Serna [2008] NSWCA 354 at [20]). Mr Sedrak did so by relying on the injury to the cervical spine on 29 April 2003. However, though he also relied, in submissions, on the accepted lumbar spine injury on 24 July 2007, Mr Sedrak had not pleaded that injury in the Application. Indeed, the Application made no attempt to properly explain the basis of the claim.

4. Moreover, it was far from clear, and certainly was not accepted by Allianz, that the voluntary payments of weekly compensation were being made solely as a result of the effects of the 24 July 2007 back injury. That being so, it was open to Mr Grant to argue, as he did, that the incapacity related to the neck injury (whenever it occurred) was intermingled with the incapacity related to the back injury (whenever it occurred).

5. It therefore follows that, even if it is accepted that the Arbitrator erred in determining that Mr Sedrak suffered his injuries as a result of the nature and conditions of his employment, that error makes no difference to the outcome. That is because the Arbitrator found, as Mr Harrington had urged, that Mr Sedrak suffered two injuries: an injury to his cervical spine and an injury to his lumbar spine.

6. Whether those injuries were received only on 29 April 2003 and 24 July 2007, as Mr Harrington had contended, or as a result of the nature and conditions of employment up to September 2008, as Mr Grant had argued, made no difference to the ultimate issue the Arbitrator had to determine. The expressions “frank injury” and “nature and conditions of employment” are merely “descriptions of mechanisms for suffering an injury” (per Giles JA, Hodgson JA and Brownie AJA agreeing, in Wyong Shire Council v Paterson [2005] NSWCA 74; 5 DDCR 13 at [38]).

7. The crucial point is that the Arbitrator accurately identified the ultimate issue for determination to be:

   “whether [Mr Sedrak] has an incapacity for employment as a result of the injury to his cervical spine and whether that incapacity entitles him to a concurrent payment of compensation. In other words does he have two separate and distinct incapacities entitling him to a payment of two awards of compensation?” (T1.34 – 4 March 2014)

8. In considering whether Mr Sedrak had two separate and distinct incapacities, the Arbitrator referred to the parties’ submissions and the evidence. She noted that Dr Dan, a neurosurgeon qualified by Mr Sedrak, gave evidence that Mr Sedrak was fit for certain sedentary duties, which allowed him to move around from time to time and did not involve lifting more than five kilograms, repetitive use of his arms or maintenance of a fixed posture. The Arbitrator thought that that opinion was based on Mr Sedrak’s cervical and upper limb problems, and, though the doctor also commented on Mr Sedrak’s low back pain and right sciatica, he gave no opinion on Mr Sedrak’s fitness for work due to the back problems.

9. The Arbitrator also referred to the evidence from Dr Guirgis, Mr Sedrak’s treating orthopaedic surgeon, who prepared a series of reports in which he noted Mr Sedrak’s complaints in both the cervical and lumbar areas, with C7 left and right radiculopathy and right L4/5 radiculopathy. Dr Guirgis thought Mr Sedrak was totally unfit for work as a result of (all of) those symptoms.

10. Dealing with the evidence from Dr Bosanquet, orthopaedic surgeon qualified by Allianz, the Arbitrator said that he “principally examined” Mr Sedrak in respect of his back problems and made no comment in respect of his fitness for work. He thought that Mr Sedrak had degenerative disc disease at L3/4 and L4/5 with a shallow broad based disc bulge.

11. The Arbitrator particularly noted the medical certificate from Dr Rezk of 22 August 2008, to which Mr Murray referred in his submissions on appeal, and Mr Grant referred at the arbitration, which diagnosed Mr Sedrak to have lower back and right leg pain, and neck pain, and certified him fit for suitable duties. She added that Dr Rezk’s latest certificates related only to Mr Sedrak’s neck symptoms.

12. Dealing with the critical issue of whether Mr Sedrak had established two separate and distinct incapacities, the Arbitrator said, at T11.31– 4 March 2014:

    “On all of that evidence quite clearly there is an intermingling of symptoms leading to an incapacity for employment. On the balance of probabilities[,] I am unable to determine on the evidence before me that [Mr Sedrak] has a separate and distinct incapacity as a result of an injury to his cervical spine and as a result of injury to his lumbar spine. I am therefore satisfied that [Mr Sedrak] has but one incapacity, which is an incapacity to engage in full time employment involving bending, use of his arms at or above head height or lifting over five kilograms in weight, such incapacity being from 2 September 2008.”

1. The submissions by Mr Jones have not addressed the Arbitrator’s reasons, or the evidence, but have merely repeated the broad assertion, which Mr Harrington made at the arbitration, that the injury to the lumbar spine has affected the lower back and legs and the injury to the cervical spine has affected the neck and arms. So much may be accepted, but much more is needed to establish two separate and distinct incapacities.

2. The Arbitrator’s analysis of the evidence comfortably established that Mr Sedrak has a single incapacity, namely, an incapacity to engage in full-time employment involving bending, use of his arms at or above head height, or lifting over five kilograms. That incapacity has resulted from the combined effect of his neck injury and his back injury. That is so regardless of when or how Mr Sedrak received those injuries.

3. As explained at [60] in Cordina Chicken Farms Pty Ltd v Thoa Hong Le [2008] NSWWCCPD 125, the determination of whether two injuries have resulted in separate and distinct incapacities is not done in the abstract, but will be a question of fact depending on the circumstances in each case. It should not be assumed, as appears to have happened in the present case, that a worker who has received two injuries to different parts of the body will automatically be entitled to two payments of weekly compensation.

4. The evidence in the present case has not come close to establishing that Mr Sedrak suffered two separate and distinct incapacities and his case was bound to fail, regardless of the Arbitrator’s finding that the injuries had been caused by the nature and conditions of his employment up to September 2008. On the evidence tendered, it was open to the Arbitrator to find that Mr Sedrak’s suffered only one incapacity. That finding disclosed no error.

OTHER MATTERS

1. Though it has not been argued, and I have therefore not based my decision on it, a further matter requires comment.

2. Whilst a finding of a total incapacity, subsequent to a finding of partial incapacity, will not eliminate the liability for the initial partial incapacity, the calculation of compensation payable under s 40 of the Workers Compensation Act 1987 (as it stood prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012) for the initial partial incapacity calls for the application of the discretion in s 40(1) (Holmes v Civil & Civic Pty Ltd (1970) 72 SR (NSW) 583; 92 WN (NSW) 1021 592) in determining the amount of compensation that is “proper in the circumstances of the case” (Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50).

3. The proper application of the discretion in such a case (where the subsequent incapacity is total) will usually result in the award for the initial partial incapacity being reduced to a nominal amount because the subsequent total incapacity will have eliminated the worker’s ability to earn in any event. (The reason the award for partial incapacity is reduced to a nominal amount, and not to nil, is because the discretion cannot be used to reduce an award to nil (Kesen v Luke Singer Pty Ltd (1989) 5 NSWCCR 298).

4. Thus, in the present case, had it been accepted that Mr Sedrak had an initial partial incapacity, caused by his neck injury, and a subsequent (but separate) total incapacity, caused by his back injury, any award of weekly compensation for the neck injury would have been reduced to only a nominal amount in any event.

CONCLUSION

1. This appeal was without merit and bound to fail. The submissions in support of the appeal made no reference to the evidence or the Arbitrator’s analysis of it. The Arbitrator’s decision was open on the evidence and disclosed no error.

DECISION

1. The Arbitrator’s determination of 7 March 2014 is confirmed.

COSTS

1. Each party is to pay his or its own costs of the appeal.

Bill Roche
Acting President

30 June 2014

I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE