Shane Shoesmith v Cessnock Truck and Tyre Centre Pty Limited
[2010] NSWWCCPD 39
•14 April 2010
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Shane Shoesmith v Cessnock Truck and Tyre Centre Pty Limited [2010] NSWWCCPD 39 | |||||
| APPELLANT: | Shane Shoesmith | |||||
| RESPONDENT: | Cessnock Truck and Tyre Centre Pty Ltd | |||||
| INSURER: | CGU Workers Compensation (NSW) Limited | |||||
| FILE NUMBER: | A1-7979/09 | |||||
| ARBITRATOR: | Mr R Foggo | |||||
| DATE OF ARBITRATOR’S DECISION: | 11 December 2009 | |||||
| DATE OF APPEAL DECISION: | 14 April 2010 | |||||
| SUBJECT MATTER OF DECISION: | Separate injuries; circumstances where worker entitled to two concurrent awards of weekly compensation; evidence of incapacity; worker’s entitlement to costs, section 341 of the Workplace Injury Management and Workers Compensation Act 1998 | |||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Bale Boshev Lawyers | ||||
| Respondent: | Bartier Perry Lawyers | |||||
| ORDERS MADE ON APPEAL: | Paragraph (1) of the Certificate of Determination dated 11 December 2009 is revoked and the following order is made in its place: | |||||
| “1. Award for the applicant at the rate of $637.50 per week from 31 January 2005 to 13 April 2005 pursuant to section 37 of the Workers Compensation Act 1987." | ||||||
| Paragraph (2) of the Certificate of Determination dated 11 December 2009 is confirmed. The Certificate of Determination dated 11 December 2009 is amended by the inclusion of the following order: | ||||||
| “3. The Respondent is to have credit in respect of payments made by way of weekly benefits in respect of the period 31 January 2005 and 13 April 2005”. | ||||||
| No order as to costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
Shane Shoesmith (‘the worker’), who is 42 years of age, commenced employment with Cessnock Truck and Tyre Centre Pty Limited (‘the Respondent’) in October 2004 as a Tyre Fitter. On 31 January 2005 the worker received injury to his left knee when he was struck by a falling truck tyre which weighed approximately 70 kilograms. The worker attended Cessnock Hospital for treatment of his injury, underwent x-ray examination and was discharged with crutches. He ceased work following that injury and has since not returned to employment by reason of alleged incapacity.
The worker has an unfortunate and complex history of earlier injuries involving his left knee. It is convenient to set out the relevant history of injury and treatment in a chronological table which appears hereunder. Not included are a number of sport-related injuries suggested by the evidence which predate the first incident listed.
January 1994 The worker was involved in a motorcycle accident causing injury to the left knee. 15 April 1994 Arthroscopy conducted by Dr Sage. 9 June 1994 Anterior cruciate ligament (‘ACL’) reconstruction of left knee conducted by Dr Sage. March 1995 The worker suffered a flexion injury to his left knee. 7 April 1995 Arthroscopy conducted by Dr Sage. August 1997 The worker suffered further injury to his left knee. 24 June 1999 The worker injured his left knee in a work injury. Proceedings by way of common law action commenced claiming damages. Those proceedings were settled in the worker’s favour in March 2003. 30 August 1999 The worker underwent arthroscopic procedure at the hands of Dr Caldwell during which procedure there was a placement of a lateral loop within the left knee joint. May 2001 The worker was assaulted causing various injuries including a further injury to his left knee. 8 December 2004 The worker was injured in a motor vehicle accident in the course of his employment and received injuries to his left knee and his neck. Proceedings were commenced on behalf of the worker in the District Court of New South Wales against his employer Cessnock Truck and Tyre Centre Pty Limited alleging negligence in failing to properly maintain the truck which was being driven by the worker at the time of the subject accident. The action was heard by Balla DCJ in 2007. Her Honour delivered judgment in favour of the worker on 9 November 2007. 31 January 2005 The worker injured his left knee in the course of his employment with the Respondent. 7 March 2005 The worker underwent arthroscopic procedure at the hands of Dr Caldwell.
It may be seen from the chronology appearing above that the worker received injuries to his left knee and neck in the course of his employment in December 2004, following which proceedings were commenced on his behalf seeking damages against the Respondent. It is the occurrence of this incident and the outcome of those proceedings, including findings made by her Honour Balla DCJ, which give rise to a deal of complexity concerning the rights and obligations of the parties to these proceedings. The worker claimed compensation benefits following the December 2004 injury. The evidence suggests that the worker returned to full duties on 21 December 2004 and continued working until he received the injury which is the subject of these proceedings. Of significance, the worker made a claim for workers compensation benefits against CGU Workers Compensation (NSW) Limited, the Respondent’s insurer, following the December 2004 injury. A claim form dated 17 December 2004 is in evidence. It appears that notification of that claim was not received by the insurer until 14 February 2005. The cause of such delay is not explained. It appears that compensation payments commenced following receipt by the insurer of that documentation and weekly payments continued until 30 September 2007. The records of the insurer concerning these payments suggest that liability had been accepted by the insurer with respect to the consequences of the December 2004 injury.
Judgment in the common law proceedings in respect of the December 2004 injury was delivered by Balla DCJ on 9 November 2007. On that day the insurer forwarded correspondence to the worker, being a Notice issued pursuant to section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). That Notice informed the worker that the insurer had made the decision to decline a claim made on his behalf by his solicitors in respect of lump sum compensation in respect of whole person impairment which allegedly had arisen as a result of the December 2004 injury. Whilst that correspondence tends to further confuse the issue concerning the insurer’s management of the worker’s claims, such confusion is compounded by the issue of a second Notice pursuant to section 74 on 26 June 2009 by the insurer. Again, that Notice addressed the insurer’s decision to decline liability in respect of the consequences, as alleged, of the December 2004 injury.
Reference was made in the body of the Notice dated 26 June 2009 to the fact that the worker had appealed to the New South Wales Court of Appeal from the decision of Balla DCJ. The Notice recites that the appeal brought by the worker and the cross-appeal brought by the employer had each been dismissed by order of the Court of Appeal on 2 December 2008.
The Notice proceeds to recite particulars concerning a further claim, described as “New workers compensation claim” which had been forwarded to the insurer by the worker’s solicitors on 29 April 2009. The Notice described that claim as follows:
“By letter to CGU dated 29 April 2009 your solicitors alleged that you suffered an injury when a truck tyre hit your left knee from the outside on or about 31 January 2005. They alleged that you had been unfit for work since that time. The following claim was particularised as a result of that injury:
* $900.00 per week from 31 January 2005 to date and continuing.A report of Professor Ghabrial dated 4 March 2009 was served in support of this further claim. CGU has considered all of the evidence, including the further report from Professor Ghabrial dated 4 March 2009, in support of your new claim for weekly compensation as a result of the injury on 31 January 2005. CGU has decided to deny liability for this latest claim.”
The dispute between the parties concerning entitlement to compensation benefits by reason of the consequences of the January 2005 injury led to the lodgement by the worker of an Application to Resolve a Dispute (‘ARD’) which was registered with the Commission on 1 October 2009. The ARD sought orders only with respect to weekly compensation particularised at Part 5.2, following amendment, as being payments in the sum of $900.00 per week from 31 January 2005 to date and continuing.
The worker’s application came before an Arbitrator for conciliation/arbitration on 2 December 2009 at which time each party was represented by counsel. Those proceedings were recorded and a transcript (‘T’) of that recording has been produced and provided to the parties. The Arbitrator reserved his decision and a Certificate of Determination (‘COD’), which was accompanied by a Statement of Reasons (‘Reasons’), issued on 11 December 2009.
THE DECISION UNDER REVIEW
The Certificate of Determination dated 11 December 2009 records the Arbitrator’s orders as follows:
“The Commission determines:
1. Award for the Respondent
2. No Order as to costs.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination”.
An Application Seeking Leave to Appeal against the Arbitrator’s decision was filed on behalf of the worker with the Commission on 11 January 2010.
ISSUES IN DISPUTE
The worker has specified three separate grounds of appeal which are expressed as follows:
“(a). The Arbitrator erred in finding that the injury on 31 January 2005 did not create a distinct period of incapacity, entitling the worker to compensation.
(b). The Arbitrator erred in finding that the insurer had made payments for the injury on 31 January 2005, when all payments made were for injury sustained on 8 December 2004.
(c). The Arbitrator erred in finding that the insurer was entitled to claim credit for payments made, when no payments had been made for injury on 31 January 2005.”
The “grounds” as expressed in the documentation lack clarity. However, it is reasonably clear that the worker’s complaint as expressed in ground (a) suggests error on the Arbitrator’s part in failing to determine that the incapacity from 31 January 2005 resulting from injury received on that day was separate and distinct from any incapacity suffered as a result of the motor vehicle accident which occurred on 8 December 2004 in the course of his employment.
The matters raised by the worker in grounds (b) and (c) suggest error on the part of the Arbitrator in finding that weekly benefits had been paid by the employer in respect of incapacity resulting from the injury received on 31 January 2005, and that the employer was entitled to credit with respect to such payments.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 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.
LEAVE
There is no dispute between the parties concerning threshold requirements as prescribed by section 352 of the 1998 Act.
The appeal having been lodged within the time prescribed by that section and the fact that the monetary threshold prescribed by that section has been met, together with a consideration of the arguments raised on appeal, lead me to conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.
PRELIMINARY MATTERS
The Arbitrator, between [12] and [16] of Reasons, noted a number of amendments to the documents which were before him, as well as a number of agreements reached between the parties. The worker’s year of birth as stated in the ARD was amended to delete “1987” and to be substituted with “1967”. The claim as expressed in Part 5.2 of the ARD was amended by deletion of “01/01/2000” and substituting the words “to date and continuing”.
The statement made by the worker was corrected as noted by the Arbitrator. That correction was required in that there had been an inadvertent reference to the right knee when it was intended that reference be made to the left knee.
The Arbitrator noted at [15] of Reasons that the parties had agreed that proceedings conducted by the worker before the District Court and the subsequent proceedings in the Court of Appeal had been amended to substitute the employer’s name as Defendant to the action in the place of Bernard Roderick O’Neill.
The parties agreed, as noted by the Arbitrator at [16] of Reasons, that, as at 31 January 2005, the worker was being paid $17 per hour, and that weekly payments of compensation had been made up until 21 December 2007. That paragraph includes the words “although it appears that most of these payments were made in respect of the claim of 8 December 2004”.
It is convenient to note here that the relief sought by the worker on this appeal is that the award entered by the Arbitrator be revoked and substituted with an award in his favour “for weekly payments in [sic, for] the period 31 January 2005 to 16 December 2005”. It may be seen that the worker now seeks an order in respect of entitlement to compensation payments for a closed period.
The claim as now framed on behalf of the worker appears to be founded upon a mis-statement of the Arbitrator’s findings as to the consequences of the subject injury. It is put [at 2.8(a)] of Submissions in Support of the Appeal that “the Arbitrator made a finding that as a result of the injury on 31 January 2005 [the worker] was incapacitated from [sic, for] work from 31 January 2005 to 16 December 2005”. That submission misstates the findings of the Arbitrator. The relevant finding is to be found at [45] of Reasons, where it was stated:
“45. Accordingly, I find that as a result of the injury of 31st January 2005, the Applicant was incapacitated for work from 31st January 2005 to 16th September 2005.”
It is also convenient to note at this point that the Respondent in its submissions on this appeal, whilst supporting the Arbitrator’s entry of an award in its favour, argues that the Arbitrator has erred in making certain findings, and such findings are challenged on this appeal. That challenge is advanced notwithstanding the fact that the Respondent has not sought leave to bring an appeal against the Arbitrator’s determination of the dispute. It is put on behalf of the Respondent that such challenge is permissible, having regard to the nature of the review process which is undertaken by the Commission once leave is granted to proceed with an appeal pursuant to section 352 of the 1998 Act. The arguments advanced on behalf of the Respondent are addressed below.
EVIDENCE
The evidence adduced by the parties before the Arbitrator is summarised at [11] of Reasons. No oral evidence was adduced at the hearing.
The Worker’s Evidence
The worker relied upon those documents attached to his ARD. That material included a copy of the insurer’s Notice issued pursuant to section 74 of the 1998 Act, dated 26 June 2009. It should be noted that reference was made in that Notice to a great many documents which the insurer asserted are in the possession of the worker or his solicitor, and did not appear as attachments to the ARD. As will be seen, those documents had been tendered on behalf of the Respondent.
There was a brief statement made by the worker, dated 20 January 2009, attached to his ARD. The worker stated that his left knee “has gradually been deteriorating as time goes by”. Reference was made to an incident involving the worker being struck by a 70-kilogram truck tyre, which was on its rim, in circumstances where contact was made to the outside of his left knee, causing “it to buckle”, and the worker fell to the ground “in extreme pain”. The worker stated that he sought treatment from Dr Stanborough and Dr Caldwell. It was stated that Dr Stanborough had “left the country” and the worker then consulted Dr Khan. Dr Khan referred the worker to Dr Harrington. That referral occurred in February 2009. The worker proceeded to describe the disability which he experienced in his left knee.
The worker relied upon the contents of two reports from Dr Y A E Ghabrial, each dated 4 March 2009. That evidence is addressed below, together with further evidence of Dr Ghabrial to be found in reports predating those relied upon by the worker, which had been tendered on behalf of the Respondent.
Copies of 35 letters addressed to the worker by the insurer relating to payment of weekly benefits were attached to the ARD. Those documents relate to payments made between the years 2005 and 2007. This evidence is addressed, together with evidence produced on behalf of the Respondent concerning payments, in the course of discussion below.
The worker relied upon the contents of a large volume of taxation records relating to his earnings and tax liabilities between the years 2001 and 2006. There was also a PAYG summary issued by an entity described as “South Pacific Tyres” dated 30 June 2004.
It is recorded (at T2) that the worker tendered “wages records” which had been tendered in the proceedings conducted before the District Court, which were to be found at page 138 of the Blue Appeal Book (‘Blue Book’), and which had been filed by the worker’s solicitors with the Court of Appeal. Those records relate to payments made by the Respondent to the worker during the latter part of 2004 and the early weeks of 2005. The copy included in the Blue Book has the dates obliterated by the binding. However it is clear that, before injury in December of 2004 and upon resumption of work prior to the injury in 2005, the worker was engaged to perform ordinary time of 37.5 hours per week, and that he performed regular overtime, which ranged from three hours per week to as much as 12 hours overtime per week. It was noted at [16] of Reasons that the parties agreed that the worker was, in January 2005, being paid $17 per hour.
The Arbitrator made note at [11] of Reasons that the Statement of Claim and Defence filed in the District Court proceedings, as found in the Red Appeal Book filed by the worker’s solicitors with the Court of Appeal, had been tendered in evidence. It is not clear as to which party tendered that portion of the record of the District Court proceedings. It is important to note that the injuries and disabilities particularised in the worker’s Statement of Claim included pain and restriction in his neck and arms, and injury to his left knee. The worker alleged that, as a result of disability caused by the motor vehicle accident, he had been “unfit for work”, and stated at [7] of the Statement of Claim that he claims $800 per week from 8 December 2004 “to date and continuing until the date of his retirement at age 65”. An alternative allegation is made in that paragraph of the Statement of Claim, being that the worker had “suffered a diminution of his earning capacity on the open labour market and seeks to be compensated accordingly.”
The Respondent’s Evidence
The Respondent relied upon those documents which were attached to the Reply filed in response to the worker’s Application seeking to bring this appeal. Those documents are voluminous and are said to number 622 pages in total. The form of Reply which was before the Commission did not include those pages numbered from 77 to 291 inclusive. The index to the Reply indicated that those documents omitted included medical records produced by Cessnock Hospital, medical records produced by Dr Sage, and medical records produced by Dr Bookallil. I note that those documents produced by the hospital, Dr Sage and Dr Bookallil had been tendered in the District Court proceedings on behalf of the Defendant, the Respondent to these proceedings. I infer that those documents had been tendered in those proceedings having regard to the notations found in the index to the Blue Book. The records of Dr Sage and of Dr Bookallil appear to be reproduced in the Blue Book. A copy of the notes of Cessnock District Hospital were provided to the Commission, as noted at T3, and have been treated by the Arbitrator as part of the Respondent’s case.
Having regard to the considerable volume of documents tendered on behalf of the Respondent, it is not intended to attempt a summary of each, but to seek to extract from those documents that material which is relevant to the issues raised on this appeal. Included among the documents annexed to the Reply was a report of Dr John Sage dated 23 March 2000 addressed to Stacks the Law Firm, the solicitors who represented the worker in the common law proceedings conducted in respect of the injury received by him in June of 1999, which were settled in March of 2003. In that report, Dr Sage gave a history of injury having been sustained by the worker in January of 1994, and of his finding following arthroscopy and examination of a “tear of the anterior cruciate ligament” of the left knee. That arthroscopy was conducted on 15 April 1994. Also revealed were tears of the worker’s medial and lateral meniscii. Those tears were treated by resection of the torn portions. Dr Sage noted during that procedure that there had been “chondral changes”, which he classified as “moderate but extensive”. The report proceeded to note that a reconstruction of the worker’s anterior cruciate ligament was conducted by him on 9 June 1994. The worker’s rehabilitation was “a bit slow” and patellofemoral discomfort had been reported by the worker. Dr Sage also recorded in that report the occurrence of a flexion injury in March of 1995. A further arthroscopy was conducted by Dr Sage on 7 April 1995. Examination revealed that the “graft was lax and there were chondral changes fairly widespread, but mainly in the lateral compartment”. Dr Sage also recorded a further injury involving the worker’s left knee in August of 1997, following which the worker sought Dr Sage’s opinion. It was Dr Sage’s view that the worker had suffered an impact injury to the articular surface associated with the laxity of the anterior cruciate ligament. Dr Sage reported that he had not been consulted by the worker since that time, and expressed the view that the worker’s knee was “not completely stable” before the June 1999 work injury.
There were 16 separate reports prepared by Dr Bruce Caldwell, the first of which is dated 30 June 1999, and the last of which is dated 16 May 2006. That last report summarised the contents of the earlier reports which were addressed to the worker’s general practitioner or the Respondent’s insurer or the worker’s solicitors. Dr Caldwell reported that he was first consulted by the worker in June of 1999 concerning the condition of his left knee. Earlier history of injury and treatment by Dr John Sage was noted. A complete revision of the anterior cruciate ligament reconstruction was carried out by Dr Caldwell on 30 August 1999. A lateral loop stabilisation procedure was performed at that time. Dr Caldwell recorded in that report that he was consulted by the worker in November of 2001 and January of 2003. Dr Caldwell was again consulted in February of 2005, at which time an MRI scan was arranged, the result of which suggested a tear of the lateral meniscus with a displaced fragment. During that February consultation, Dr Caldwell had taken a history of an injury in November [sic] 2004 in a motor vehicle accident and an injury two days prior to the consultation, after a return to work, when a large truck tyre fell on the outside of the knee. Dr Caldwell conducted a left knee arthroscopy on 7 March 2005. The following matters were noted by Dr Caldwell in an operation report which was dated 7 March 2005:
“The lateral compartment was examined and probed. The chondral surfaces showed minor wear. There was no lateral meniscus at all and was not present in the notch. There was some scar tissue in this area and I believe the MRI scan has misread the scar tissue as a bucket-handle tear. A debridement was performed.”
Earlier, Dr Caldwell, in a report dated 22 February 2005 addressed to the Respondent’s insurer, responded to a number of questions which had been put to him by the insurer in a correspondence dated 10 February 2005. There is no copy of the insurer’s correspondence in evidence before the Commission. It appears that the doctor was asked his opinion concerning the question of causation of the then current disability experienced by the worker in his left knee. Dr Caldwell replied:
“This current injury would appear to be related to the motor vehicle accident or possibly the tyre injury. One was in the work truck and one was at the work place so I think that it is probably a little irrelevant.
There is of course the underlying old ACL reconstruction with a slightly unstable knee. I performed a loop procedure on this man to stabilise his knee some years ago and in fact it seemed to be quite solid and he returned to full levels of work for a number of years. He really relates the change in his circumstances to the motor vehicle accident that occurred in November, 2004. This was a quite major accident in which he rolled the truck a couple of times and the leg was caught among the pedals etc.”
It appears that Dr Caldwell, in his report of 22 February 2005, also addressed the question of the worker’s fitness for work. In response to Question 4 put to him by the insurer, he stated:
“He is not really fit for duties at the present time until he has had his knee sorted out. Having a locked bucket handle tear is uncomfortable and makes work difficult”.
Dr Caldwell, on 20 September 2005, reported to NRMA Insurance, the motor vehicle third party insurer of the Respondent. That report gave particular attention, as did other reports dated 2005, to the occurrence and consequences of the motor vehicle accident which occurred in December of 2004. Little attention was given in the reports to the relevance of the injury which occurred in January of 2005. Dr Caldwell made reference to the surgery which he conducted in March of 2005 (mistakenly referred to by the doctor as being on 7 July 2005) in the following terms:
“His recent surgery was the 7th July 2005 [sic, 7 March 2005] and though we did find some abnormalities in the knee there was no new tear of his meniscus and in fact no signs of any new pathology at all. He does have significant chondral loss in the lateral compartment but it is hard to see how this relates to his accident of 8th December 2004.
Opinion
I believe this patient is fit for work but he has not worked for over four–five years, in which time he has pursued a number of claims.”
The Respondent relied upon the evidence of Dr Ghabrial as contained in four reports, dated 4 November 2005, two reports dated 14 June 2006 and 11 December 2006. The first of those reports, addressed to the worker’s solicitors, related to a medico-legal consultation on that date. The only history of knee problems post-December 2004 was recorded as ‘he had aggravations to his left knee following [injury 8 December 2004].’ Dr Ghabrial proceeded in that report to diagnose meniscus and cartilage damage which he ascribed to the December 2004 injury. Following re-examination on 14 June 2006, Dr Ghabrial again ascribed the worker’s left knee disability to the consequences of the motor vehicle accident which occurred on 8 December 2004. Of particular significance is that Dr Ghabrial, in his report of 11 December 2006, revised his earlier assessment of whole person impairment suffered by reason of the condition of the left knee from five per cent, as earlier assessed, to two per cent. This assessment may be contrasted with that as expressed by Dr Ghabrial in his report dated 4 March 2009 relied upon by the worker referred to at [28] above. The subject of Dr Ghabrial’s evidence is addressed below.
The Respondent tendered copies of 17 WorkCover NSW medical certificates which had been forwarded by the worker to the insurer. Those certificates were dated between 14 December 2004 and 19 April 2007. It is significant to note that the first two of those certificates, dated 14 December 2004 and 20 December 2004, have been date-stamped as being received by the insurer on 14 February 2005. Each of those certificates was issued by Dr Stanborough, each related to the injury received on 8 December 2004, and each made reference to knee injury as well as neck injury. The second of those certificates stated that the worker was fit for pre-injury duties on 19 December 2004.
There were certificates issued by Dr Stanborough following the injury received on 31 January 2005, dated between 1 February 2005 and 19 May 2005. Those certificates mentioned only the injury to the left knee, and the majority of those certificates referred to the date of injury as being 31 January 2005. There was a certificate issued by Dr Caldwell, dated 28 June 2005, which referred to the left knee injury only. However, the date of injury has been obliterated in the copy which is in evidence. As was noted by the Arbitrator at [41] of Reasons, the certificate appears to have the figures “05” noted adjacent to the obliterated date of injury. That certificate stated that the worker was fit for suitable duties from 16 July 2005 to 16 September 2005.
The balance of the medical certificates in evidence had been issued by either Dr Kwa or Dr Stanborough, and dated between 16 November 2005 and 19 April 2007. Each of those certificates identified the date of injury as being 8 December 2004, and the diagnosis mentioned both neck injury and left knee injury.
The documents which comprise the Red Book filed with the Court of Appeal included a copy of the worker’s Schedule of Damages. Damages claimed by the worker in those proceedings included a claim for future economic loss. The allegation made in those proceedings was that the worker had an entitlement to damages assessed upon the basis of a loss of $429 per week continuing to the date of retirement.
The judgment of her Honour Judge Balla DCJ delivered on 9 November 2007 is in evidence. In the course of her reasons, her Honour expressed her acceptance that the worker had injured his left knee and neck in the motor vehicle accident which occurred on 8 December 2004. At pages 10 and 11 of her judgment, her Honour dealt with the question concerning the consequences of the motor vehicle accident. Following a consideration of relevant medical evidence and, in particular, the medical certificates that had been tendered, she concluded:
“I find that the plaintiff returned to work after the motor vehicle accident and was able to perform all of his pre-injury duties for many hours each week. I accept that he had some ongoing disability caused by his left knee while working, however this had been the case before the accident. I am not persuaded that the plaintiff has shown that his disability was worse than it had been before the motor vehicle accident. He then sustained another injury to that knee on 31 January 2005.”
Her Honour proceeded, at page 12 of her judgment, to make a number of further findings with respect to the state of the worker’s left knee, the probable cause of disability suffered by the worker in that joint, and the consequences of the December 2004 injury in terms of causation of incapacity. Her Honour’s conclusion was as follows:
“I find that the plaintiff sustained an aggravation of the previous injury to his left knee, that aggravation did not involve any fresh injury to the knee, that the effects of that aggravation on his earning capacity ceased when he returned to work before Christmas 2004 and that any ongoing incapacity for work caused by his left knee is unrelated to the December 2004 motor vehicle accident.”
In the course of her judgment, her Honour addressed the worker’s allegation of injury to the neck giving rise to ongoing incapacity. Her Honour concluded that the plaintiff had failed to prove that any incapacity for work was caused by the injury he sustained to his neck in that motor vehicle accident. Damages as assessed by her Honour were founded upon her finding that the effects of any aggravation of previous injury to the worker’s left knee upon his earning capacity had ceased “when he returned to work before Christmas 2004”.
As noted earlier, both the worker and his employer appealed against the decision of Balla DCJ. The members of the Court of Appeal unanimously dismissed the worker’s appeal and dismissed the employer’s application for leave to bring an appeal. In the course of his judgment, Ipp JA (with whom Handley AJA and Nicholas J agreed) expressed his agreement with the conclusions of the trial judge in the following terms:
“In summary, the evidence supported her Honour’s findings that the 8 December 2004 accident only prevented the defendant [sic] from working until his return to work just before Christmas 2004, and there was no change in his condition after that date when compared to his condition immediately before the December 2004 accident. I am not persuaded by any of the Respondent’s [sic] arguments in support of the first three grounds of appeal. In my view, there was no error on her Honour’s part in this regard.”
Submissions before the Arbitrator
Counsel representing the worker placed reliance upon the decision of Roche DP in Cordina Chicken Farms Pty Ltd v Thoa Hong Le [2008] NSWWCCPD 125 (‘Cordina’). It was asserted by counsel that the decision in Cordina was “authority for the proposition that separate injuries give rise or can give rise, depending on the evidence, to separate entitlements to weekly payments of compensation, with a limit that in combination, they don’t exceed the comparable wage rate”. Counsel argued that the evidence found in the medical records produced by Cessnock Hospital relating to an attendance by the worker on 31 January 2005 was sufficient to establish the occurrence of the subject injury. Reference was made by counsel to the matters certified by the various doctors in the medical certificates referred to at [40] above. It seems to have been argued that those certificates supported the proposition that the injury received in January 2005 caused total incapacity.
Counsel made reference to the findings of Balla DCJ concerning the injury received by the worker in December 2004. It was stated by counsel, “You are bound by the findings of her Honour Balla J [sic] and her Honour Balla J [sic] found that the effects of the injury for which compensation has been paid for some period of time had ceased before this injury occurred”. It was then put by counsel that no finding was made by her Honour concerning the consequences of the January 2005 injury.
The transcript reveals that counsel proceeded to address what he described as “comparable earnings of the worker”. It seems that a suggestion was made by counsel that “$900 a week would be a fair and reasonable comparable wage rate as at 2005”. Reference was made by counsel to the report of Dr Ghabrial, dated 4 March 2009, and the argument was advanced that the views expressed by that practitioner supported the proposition that the subject injury “has a continuing substantial effect of causing incapacitation”. It is conceded that Dr Ghabrial did not express a view that the worker is “totally incapable of working”. It was counsel’s submission that the worker had a residual earning capacity of $200-$250 per week.
It was acknowledged by counsel that compensation payments had been made on a voluntary basis until a date in December of 2007. The argument was advanced concerning the finding of Balla DCJ that the December 2004 injury caused no incapacity beyond the worker’s return to work in that month, as follows:
“That is a finding that binds you. Now, how one deals with the payments of compensation that have been made, is in my submission, payments made either in error or in any event, no doubt a payment for which the Respondent could be entitled to a credit in any award in the period between January 2005 and December 2007 when payments ceased. But that does not disentitle the Applicant in my submission for [sic] the effects of his injury as pleaded creating a partial incapacity for work as I have described.”
Counsel proceeded to elaborate the matters which I have quoted above, and it was put that the worker:
“should have been paid a rate of compensation reflecting the effects of both injuries being partially incapacitated [sic]. So when one is attempting to calculate the award, that I would urge you to pay [sic] the worker from 31 January 2005 one starts with the comparable rate of $900, would subtract from that his residual earning capacity from time to time, which in my submission, would be no more than $250 at any time. Would then subtract payments made by the insurer and whatever is left in my submission, provided – whatever is left provided it is something in positive territory, should be awarded to him under section 40.”
Counsel examined the history as revealed by the evidence of the lodgement of a claim for compensation in respect of the December 2004 injury. The point was made that there had been a delay in notifying the insurer of that claim and that there had been no explanation advanced by the Respondent for such delay. The submission was put that the payments of weekly compensation made on a voluntary basis had been paid in respect of the suggested incapacity following the injury which occurred on 8 December 2004.
Counsel appearing on behalf of the Respondent before the Arbitrator sought to emphasise an apparent inconsistency between the allegations of ongoing incapacity made in the present proceedings with those allegations made by the worker in the proceedings conducted before Balla DCJ. Counsel was particularly critical of the evidence of Dr Ghabrial and it was put that the opinion as expressed in Dr Ghabrial’s report of 4 March 2009 could not stand with those matters earlier stated by that practitioner concerning causation of ongoing incapacity. Reliance was placed by counsel upon the evidence of Dr Caldwell concerning the state of the worker’s left knee as revealed during arthroscopy conducted in March of 2005 (mistakenly noted as being July 2005) in seeking to refute Dr Ghabrial’s opinion that there was “a re-rupture of the anterior cruciate ligament and medial collateral ligament” of the left knee joint. It was argued, on the basis of Dr Caldwell’s view of the arthroscopic procedure that the worker had “no further problems…than what he had before”, that there should be a finding that no incapacity flowed from the January 2005 injury.
With respect to the worker’s reliance upon the decision of Cordina, counsel representing the Respondent argued that the two injuries with which the Commission was concerned could not result in two separate and distinct incapacities as explained in that case. The point is made that the injuries both involved the worker’s left knee joint and that the worker had been paid weekly compensation benefits, and thus there would be no entitlement to compensation during the period of such payments.
The Respondent argued that acceptance of the opinion of Dr Frederick Ehrlich in his reports dated July 2007 and July 2009, read together with the evidence of Dr Caldwell, would lead to a conclusion that there was not any ongoing incapacity resulting from the January 2005 injury. Counsel made the point that Dr Ehrlich had expressed the view that the true cause of the worker’s problems may be ascribed to earlier injury which necessitated treatment.
Counsel proceeded to argue before the Arbitrator, in the alternative to that which was earlier put, that any entitlement would be in respect of partial incapacity. Submissions were put in relation to relevant economic matters and it was stated that the worker at the relevant time had “an award rate or a base rate of pay of about $650 a week gross” and that, with overtime, his earnings would be “about $750-$800 a week”. Counsel proceeded to argue that the application before the Commission was one without merit, and it was put that the claim was “a sham”. The Respondent’s application was that an order should be made that its costs be paid either by the worker or by his solicitor.
THE ARBITRATOR’S DECISION
Following a summary of the medical evidence the Arbitrator concluded that, as a result of injury received on 31 January 2005, the worker was incapacitated for work between that date and 16 September 2005. No finding was made as to whether such incapacity was total or partial during that period.
The Arbitrator noted that weekly payments of compensation had been made by the respondent up to 21 December 2007 and it was stated that (at [47] of Reasons) “the insurer has mischaracterised these weekly payments of compensation as being related to the 8th December 2004 injury…”.
SUBMISSIONS ON THIS APPEAL
The worker, in written submissions accompanying the Application Seeking Leave to Appeal, notes that the Arbitrator had made a finding that the worker, as a result of injury received on 31 January 2005, had been incapacitated for work from that date until 16 December 2005. That submission misstates the Arbitrator’s findings. It may be seen from the Arbitrator’s Reasons (at [45]) that the finding of incapacity was in respect of the period 31 January 2005 to 16 September 2005.
It is argued by the worker that the Arbitrator’s finding that the insurer had “mischaracterised” weekly payments of compensation as being related to the December 2004 injury could not be supported on the evidence.
It is argued that, having found that the worker was incapacitated as a result of the injury of 31 January 2005, the Appellant “is therefore entitled to an Award with costs”. The relief sought, as stated in [2.9] of submissions, is that there be “an Award to [sic] the applicant [sic] for weekly payments in [sic] the period 31 January 2005 to 16 December 2005”.
Supplementary submissions were filed on behalf of the worker which were dated 1 February 2010. Those submissions appear to reiterate those matters put on the worker’s behalf before the Arbitrator. It is put that, at relevant times, the worker’s probable earnings but for injury averaged $950.60 per week. It is argued that, during the period of incapacity as found by the Arbitrator at [45] of Reasons, the worker should be awarded weekly compensation “calculated by reference to his probable earnings, less weekly compensation already paid… this would be not less than the statutory rate for a single man, as adjusted pursuant to section 36 of the Act”.
With respect to the suggestion that the Arbitrator had “mischaracterised” the payments made by way of weekly benefits by the insurer, the worker submits that there has been no application for recovery of such payments which, it is suggested, is “required by reason of the provisions of section 55 [sic, section 58] of the Act [sic, the 1987 Act]”.
In summary of the argument, the worker advanced that:
“There is a clear and distinct period of incapacity for the period injury [sic], for which compensation should be paid, in addition to payments made. The amount needs to be determined, and the matter should be returned to the Arbitrator with the appropriate direction.”
The Respondent has provided written submissions on this appeal. As earlier noted, the Respondent, whilst not seeking to appeal the decision of the Arbitrator, suggests that certain findings had been made in error.
The Respondent challenges the finding by the Arbitrator that the January 2005 injury caused or contributed to incapacity or “new pathology”.
The Respondent seeks to support the Arbitrator’s finding that the worker had been paid all weekly compensation to which he was entitled by reason of incapacity resulting from the January 2005 injury.
The Respondent makes reference to the provisions of section 58(4) of the 1987 Act in support of its submission that the Arbitrator properly made orders “in adjusting the position in terms of any possible weekly payment entitlements that may have arisen from the incident on 31 January 2005 to take into account possible overpayments that may have been made in respect of the injury of 8 December 2004”.
The Respondent proceeds to analyse the evidence before the Commission in support of its argument that the worker suffered no incapacity as a result of the January 2005 injury. The Respondent asserts that the worker has “received all weekly compensation entitlements (and more) to which he has been entitled”, that he has no further entitlements, and that there should be an Award entered in favour of the Respondent.
DISCUSSION AND FINDINGS
It may be seen from the summary of the proceedings which I have attempted to outline above that the worker has abandoned the allegation made on his behalf before the Arbitrator that he had suffered ongoing incapacity as a result of the alleged injury of 31 January 2005. In submissions put in support of the appeal, the worker has misstated the Arbitrator’s finding made concerning incapacity resulting from that injury. As noted above at [23], the Arbitrator’s finding was that the resultant incapacity extended from 31 January 2005 to 16 September 2005. In the circumstances, I infer that the relief sought by the worker as stated at [2.9] of his submissions is that there be an award in his favour for weekly payments in respect of the period as found by the Arbitrator.
The conduct of this appeal has become, to an extent, complicated by the Respondent’s Response to the appeal. The Respondent has made it clear that it does not dispute the correctness of the Arbitrator’s orders; however, it does dispute certain findings made in the course of his Reasons stated in support of the ultimate orders. It is suggested that the Arbitrator erred in finding that the incident which occurred on 31 January 2005 caused or contributed to an incapacity “at all or any new pathology” (at 2.6.1) of submissions.
The present circumstances are somewhat unusual. The Respondent had secured an award in its favour following the hearing before the Arbitrator and had no need or motivation to seek to appeal that decision. It is asserted by the Respondent that, in any event, it could not succeed in bringing an appeal, given the threshold requirements specified in section 352(2) of the 1998 Act, which must be satisfied before the grant of leave is given to pursue such an appeal. The stance adopted by the Respondent is similar to that which is adopted by a party before the Court of Appeal who wishes to raise a point of contention. In the present matter, the Respondent seeks to contend that the Arbitrator’s decision should be affirmed on grounds other than those relied on by the Arbitrator, but it does not seek a discharge or variation of any part of the orders made following the hearing.
The Commission does not have in its legislative framework or rules any provision enabling a party to file a Notice of Contention to permit argument such as is raised by the Respondent in the present circumstances. It is the Respondent’s submission that, given the nature of the review permitted by section 352, it is entitled to argue that certain findings were erroneous and that they should be revoked (submissions at 2.7.2). I note that the worker has not responded to those submissions since the date of filing, being 26 February 2010.
The concept of “review” as it appears in section 352(5) of the 1998 Act has been considered by the Court of Appeal in numerous recent decisions, and relevant authority was considered by the Court in Sapina v Coles Myer Limited (2009) NSWCA 71 (‘Sapina’). It was stated by Allsop P and Hoeben J (with whom Beazley JA agreed) (at [57]):
“Whilst the new regime of dealing with workers’ compensation claims must be examined in its own statutory context, it is important to appreciate that the legislature has used a phrase that had in the prior regime, a tolerably settled meaning. Section 36 of the Compensation Court Act used the phrase ‘review the decision’. Subsections s 352(1) and (5) of the WIM Act make clear that the ‘appeal’ is to be by way of review of the decision. The notion of ‘review of a decision’ had been clearly held in the context of the former legislation and the WIM Act to be wider that an appeal strictly so-called and encompassing a reconsideration beyond correction of error. The decision under appeal is not to be ignored, but the task of the Presidential member is, as Spigelman CJ said in Chemler, ‘to decide whether the original decision is wrong [that is to] decide what is the true and correct view.’ This requires the Presidential member to decide for himself or herself these matters. That does not mean that there must be a de novo hearing in each case. Cases such as Watson, Boston Clothing, Litynski and AGL v Samuels made plain that this was not so under s 36 and the terms of ss 3, 352 (7) and 354 make clear that no such broad ranging factual enquiry afresh is necessarily required. The terms of the WIM Act, ss 3 and 354 and the width of the powers in s 352 (7) make clear that the Presidential member has a wide choice available as to how he or she undertakes the task of deciding for himself or herself what is the true and correct decision. As Allsop P said in Cook v Midpart, error (or lack of it) by the Arbitrator will or may be relevant to the task of the Presidential member, but it does not define the task. There is, however, an important difference in the nature of the tasks of (a) coming to the view that an Arbitrator’s view was reasonable and (b) deciding for oneself that the view of the Arbitrator is the true and correct one. In a field where evaluation of injury and evidence of incapacity can lead to different views, both or all which could be reasonably held, it is important that the parties have available to them the skill and judgment of the Presidential member reaching his or her own view on the questions involved in the decision.”
Having regard to the terms of section 352 and those matters stated by the Court of Appeal in Sapina as quoted above, I am of the view that, in the present unusual circumstances, it is appropriate that the challenges raised by the Respondent with respect to the Arbitrator’s findings may be addressed on this review.
The Question of Injury on 31 January 2005
Before dealing with the matters raised by the worker, it is convenient to deal with the Respondent’s arguments which challenge the Arbitrator’s finding concerning the occurrence of injury which resulted in incapacity.
It should be noted at the outset that, at the hearing before the Arbitrator, there was no serious challenge raised by the Respondent to the worker’s allegation that an injurious event occurred on 31 January 2005. The issue raised by the Respondent concerns the alleged consequences of that incident. The medical notes produced by Cessnock District Hospital concerning the worker’s attendance at the Emergency Department on that date, at 12:35 pm, record that he was limping on arrival and he reported receiving a left knee injury that morning when at work when a tyre accidentally hit his knee laterally, causing it to twist. On examination, the attending Medical Officer recorded that the worker’s left knee “looks swollen”. It is clear that a history had been taken of earlier injury and there is a note that there had been an aggravation of “an old knee injury”. The notes record that the worker’s knee was x-rayed, and it appears that a diagnosis of “collateral ligament strain” was made. The worker was discharged with his knee bandaged and he was provided with crutches.
There is in evidence a certificate issued by Dr Stanborough dated 1 February 2005. That is a WorkCover NSW certificate relating to an injury stated to have occurred on 31 January 2005, certifying that the worker was unfit between the date of that injury and 1 March 2005. Dr Stanborough’s diagnosis was stated as “lateral ligament tear left knee”.
The worker was examined by Dr Caldwell, following referral by Dr Stanborough, and his report dated 2 February 2005 is before the Commission. That report contains a history of numerous left knee injuries sustained by the worker from 1993 and a brief summary of Dr Caldwell’s earlier treatment. It is also recorded that, “two days ago”, the worker had a further injury to that knee. The circumstances as recorded are consistent with the worker’s reported injury to Cessnock Hospital. On examination, Dr Caldwell noted the following:
“He was in a normal alignment and he held the knee in a flexed posture. The quadriceps were in reasonable condition. He was wearing a bandage, this was removed and there was no laceration. He had a small effusion present. The patella was normal and tracked well. He had marked lateral sided knee pain consistent with direct injury. There was no swelling or bruising.
Examination of the ligaments revealed Grade I-II laxity of the medial collateral ligament. The Lachman test was solid with intact cruciate reconstruction and no pivot shift or glide.”
Dr Caldwell made the observation that the worker “does however have some mild lateral laxity. This is commonly seen following lateral loop procedure which is difficult to interpret. If he got hit from the lateral side it is unlikely that any problem was caused here”. The worker returned to see Dr Caldwell later in February of 2005, following an MRI scan. The report which accompanied that scan suggested that the worker had suffered a tear of the lateral meniscus which is bucket-handled and jammed in the joint. Dr Caldwell expressed the view that such a finding would account for the worker’s lateral-sided knee pain. In the circumstances, an arthroscopy was arranged. The findings made by Dr Caldwell during that procedure are noted at [35] above. It was Dr Caldwell’s view that the MRI scan report had misdescribed the state of the worker’s knee.
The worker returned to see Dr Caldwell on a number of occasions and, at the worker’s request, a medical certificate was issued by Dr Caldwell on 28 June 2005 which certified that the worker was fit for suitable duties from 16 July 2005 to 17 September 2005.
The Respondent, not surprisingly, seeks to emphasise the apparent contradiction between the present allegation of incapacity and the allegations made by the worker as to the cause of ongoing incapacity which were ventilated in the proceedings before Balla DCJ. It is put that the worker, having received a disappointing result in those proceedings, has brought these proceedings alleging ongoing incapacity as a result of the January 2005 injury. The submissions include a significant attack upon the credibility of the evidence of Dr Ghabrial as found in his report of 4 March 2009. It is further argued that, once Dr Ghabrial’s evidence is dismissed as “lacking any probative value”, there is no medical evidence which supports a “finding of any additional pathology or incapacity, having resulted from the incident on 31 January 2005.”
I accept the Respondent’s arguments challenging the probative value of Dr Ghabrial’s report as expressed in his report of 4 March 2009. It follows that I agree with the conclusion expressed by the Arbitrator concerning Dr Ghabrial’s diagnosis as expressed in that report. The Arbitrator, following a summary of the relevant evidence, reached the following conclusion:
“Dr Ghabrial’s claim in his report of 4 March 2009 at page 2 that the applicant had most likely suffered a re-rupture of the left anterior crucial [sic] ligament and medial collateral ligament cannot be maintained in the light of Dr Caldwell’s findings on arthroscopy, and also in relation to his comments in general”.
The Arbitrator appears to have made a finding of injury occurring on 31 January 2005 at [45] of his Reasons. That is a conclusion with which I respectfully agree. The worker’s evidence as to the occurrence of that injury is corroborated by the matters recorded in the hospital notes referred to at [78] above, in particular, the notation of the existence of some swelling in the subject joint, as well as the various medical reports and medical certificates which immediately post-date the incident. Having regard to the appearances of the knee joint as noted by Dr Caldwell during conduct of the arthroscopy, I accept the argument advanced on behalf of the Respondent that there is no evidence of “new pathology” following the subject incident. In so concluding, it is intended only that the worker’s allegation of there being further meniscal or ligamentous damage is rejected. Having regard to the state of the worker’s knee upon presentation at the Cessnock Hospital, it is reasonable to infer that the impact of the tyre upon his knee joint caused some aggravation of the significant underlying changes present in the knee. Such aggravation was of temporary effect, and it is proposed to deal with the question of duration of incapacity below.
The Question of Incapacity
The Arbitrator’s finding with respect to incapacity which resulted from the January 2005 injury is to be found at [45] of Reasons, where it was stated “I find that as a result of the injury of 31 January 2005, the applicant was incapacitated for work from 31 January 2005 to 16 September 2005”. Whilst the Arbitrator had earlier summarised the medical evidence before him, including the content of a number of medical certificates, there is no clear statement made in the course of his Reasons as to why he found that incapacity had ceased as at 16 September 2005. A further difficulty arises concerning the Reasons as expressed by the Arbitrator, given that he has not made any finding as to whether such incapacity is total incapacity or partial incapacity. In the circumstances, the Arbitrator’s determination of the issue of incapacity requires review.
Little, if any, attention is given to the question of incapacity by the worker in the course of his submissions made in support of this appeal. It does appear (T3) that, at the hearing before the Arbitrator, reliance was placed by the worker upon the contents of various medical certificates as evidence of incapacity. Those submissions, to an extent, lack clarity. However, it appears that the argument was put that those certificates would support a finding of total incapacity up until 13 April 2005. The certificate relied upon in support of this proposition was that of Dr Stanborough dated 14 April 2005, which certified the worker as unfit for duties until 13 April 2005, and fit for suitable duties thereafter until 14 May 2005.
The evidence of Dr Ghabrial as found in his report of 4 March 2009 does address the question of incapacity which, in that practitioner’s view, resulted from the January 2005 injury. Whilst I accept Dr Ghabrial’s view that the worker “remains indefinitely unfit for activities involving any running, climbing ladders, going up and down stairs excessively, walking on uneven ground, standing for lengthy periods, walking for long distances, kneeling and squatting”, I reject his expressed view “that his employment injury on 31 January 2005 is considered to be a substantial contributing factor to the present clinical features, disabilities and impairment”. My rejection of that evidence is made having regard to my evaluation of Dr Ghabrial’s evidence as expressed at [84].
Notwithstanding the unsatisfactory state of the medical evidence concerning the issue of incapacity, it is clear that the worker had experienced a problem with his left knee for many years prior to the January 2005 incident and, in the view of Dr Caldwell, his long term problem “really stems from the fact that his original ACL reconstruction is not entirely stable and a revision reconstruction is probably what really is required”. That view is expressed in his report of 22 February 2005 but was later qualified. Dr Caldwell concluded at the time he conducted the arthroscopy on 7 March 2005 that the state of the worker’s knee was such that no revision was required. It is significant, in my view, that Dr Caldwell stated in his letter dated 29 March 2005 addressed to Dr Stanborough as follows:
“Basically I can find no further problems in this man’s knee. Certainly his medial and lateral compartments are both missing the meniscii but he is in a good alignment and the bearing surfaces are in quite reasonable condition. The patello-femoral joint is normal and his anterior cruciate ligament is solid. There is about 7 mm of laxity in his medial collateral ligament but I did not feel that this was particularly unusual and is seen in many patients as a normal finding. He has similar mild laxity in the medial collateral ligament in his unaffected knee.”
There are in evidence medical certificates which certify that the worker was fit for suitable duties beyond 14 April 2005, including one issued by Dr Caldwell stating that he was subject to such a restriction up until 16 September 2005. I note that it is that certificate which does not include a clear statement as to the date of injury, and that 16 September 2005 is the date at which the Arbitrator determined the worker’s incapacity had ceased. Having reviewed the evidence, I am not satisfied that there is sufficient evidence to establish any incapacity resulting from the subject injury beyond 13 April 2005, as stated in the certificate of Dr Stanborough. The worker had presented to Cessnock Hospital, undergone investigations and surgical intervention, namely, arthroscopy, following which a period of convalescence may reasonably be allowed. In my view, it is open on the evidence to conclude that the consequences of the injury and the need for treatment had ceased by 13 April 2005. The state of the evidence is, in my view, uncertain and not persuasive as to any relationship between the subject injury and ongoing partial incapacity which may be inferred from the various medical certificates which are in evidence.
For the reasons which I have attempted to outline above, I find that, as a result of the injury of 31 January 2005, the worker suffered an aggravation of a pre-existing disability in his left knee which resulted in total incapacity from that date until 13 April 2005. I am not satisfied on the evidence that any subsequent incapacity has been established by the worker to be causally related to the subject injury.
The Worker’s Appeal
It has been necessary to determine the question concerning the relevance of the subject injury to any incapacity, and the question as to the nature and extent of such incapacity, before turning to the matters raised by the worker on this appeal. The need for such approach has arisen because of the unusual circumstances which I have attempted to summarise at [73] above.
There have been findings on this review that incapacity has resulted from the subject injury which ceased on 13 April 2005. It is accepted by the worker that he has been paid weekly benefits up to and beyond that date. Notwithstanding receipt of those payments, the worker argues that the Arbitrator’s finding that the insurer had “mischaracterised” the weekly payments made as being related to the December 2004 injury was wrong. As I understand the worker’s argument, both before the Arbitrator and on this appeal, such payments were made in respect of the 2004 injury and, having regard to the principles as enunciated in Cordina, the worker is entitled to an award of compensation in respect of the “separate” period of incapacity which commenced on the date of the 2005 injury.
The worker’s argument founded upon the decision of Cordina cannot be accepted. That authority is only relevant in circumstances where there are two injuries received by a worker which result in separate concurrent incapacities. In such circumstances, a worker is entitled to two awards, as outlined in the course of the discussion by Roche DP at [59] of that decision.
I accept the Respondent’s argument that the principles as found in the decision of Cordina can have no application to the present facts. With respect to the 2004 injury, the worker, as he has conceded, is bound by the finding of Balla DCJ that the incapacitating consequences of that injury had ceased before Christmas of 2004. It may be seen that there is no “overlap” of resultant incapacity from the injuries in 2004 and 2005. The Commission in the present matter is dealing with a short period of incapacity between January and April of 2005 which has resulted from an injury that caused aggravation of a pre-existing condition.
It is correct to state that there exists considerable confusion on the evidence as to the basis upon which the insurer paid ongoing benefits up until 2007 following receipt of a compensation claim in February of 2005. It is suggested by the Respondent in the course of submissions that it is not uncommon for an insurer, in circumstances where a worker suffers injury and a subsequent aggravation of that injury, to record payments as having been made with respect to the original claim. In the present circumstances, nothing, in my view, turns on the manner in which the insurer managed payments in respect of incapacity following the January 2005 injury. Having regard to the finding of Balla DCJ, the earlier incapacity had ceased and any payments made, albeit before her Honour’s finding, have the effect of discharging the Respondent’s liability to make weekly payments to the worker. It is not suggested by the worker that those payments were made other than in respect of total incapacity.
I am of the opinion that it can be said that payments of compensation have been made in respect of one incapacity, and that a later incapacity has arisen entitling the worker to further payments of weekly benefits. The Respondent has met its obligation; however, the question remains as to whether the worker is entitled to an award, subject to an order that the Respondent have credit in respect of payments made during the period 31 January 2005 to 13 April 2005.
The relief sought by the worker includes the entry of an award in his favour. The Respondent on this appeal asks that the Arbitrator’s award entered in its favour be confirmed. As a matter of general principle, in circumstances where parties agree as to their rights and obligations, they may seek an order confirming such agreement, and it is arguable that the Commission has a duty to enter an award in terms of that agreement (see discussion by Taylor AJA and Hardie AJA in Ashenden v Stewarts & Lloyds (Aus) Ltd [1972] 2 NSWLR 484). The Commission is not here dealing with an agreement in respect of which the parties seek an award. A dispute has been determined by the Commission, which has resolved the question as to the rights and liabilities of the parties arising from the injury proven and its consequences. It is my view that the worker has a right to seek an award and that the Commission has a duty to make such an award. I reach that view having regard to general principle as discussed in Ashenden and my opinion that there is nothing in either the 1987 Act or the 1998 Act that places any restriction upon such right. Such an award would define the rights and obligations, whereas entry of an award in favour of the employer would fail to achieve such definition. In the circumstances, the order made by the Arbitrator in favour of the Respondent requires revocation and substitution with those orders which appear below.
Costs of the Arbitration Hearing
The worker asserts in submissions on this appeal that, following entry of an award in his favour, he is entitled to, and seeks, an award of costs with respect to the hearing before the Arbitrator. The Respondent seeks confirmation of the Arbitrator’s costs order. As a matter of general principle, costs follow the event and, in usual circumstances, a successful party is entitled to an order for costs. The Commission’s power with respect to costs is regulated by the provisions of section 341 of the 1998 Act, which grants a very broad discretion concerning the determination of questions concerning entitlement to and liability for costs.
I note that the Respondent argued before the Arbitrator that these proceedings should be found to be frivolous or vexatious and that an award of costs should be made against the worker. That argument was rejected by the Arbitrator and I note that, on this appeal, that argument has not been reiterated by the Respondent. Whilst I respectfully agree with the Arbitrator’s view that the proceedings may not be characterised as frivolous or vexatious, I am troubled by a number of features of this litigation, which include the history of the common law action and the consequences of findings made by the court as confirmed on appeal, the paucity of evidence advanced in support of the present claim, the character of the medical evidence relied upon in support of the claim, the failure of the worker to adduce the evidence of Dr Ghabrial in its totality at the hearing, and the lack of merit of the argument which was advanced founded upon the authority of Cordina. Perhaps the least meritorious feature of the manner in which this application has been brought before the Commission is the worker’s failure to ensure that the evidence of its expert medical witness, Dr Ghabrial, was before the Commission in its totality. A party has an obligation not to mislead the Commission, and such is likely to result from a party’s selective tender of expert evidence. In the present circumstances, the Respondent has been obliged to adduce an enormous volume of material upon which reliance was placed to seek to establish the true history of the worker’s claim and the basis of its dispute as to entitlement. Given the broad discretion granted to the Commission with respect to matters concerning costs, I conclude that, in the present circumstances, there should be no order made in the worker’s favour with respect to the costs of the hearing before the Arbitrator and, accordingly, the Arbitrator’s order as to costs is to be confirmed.
The award to be entered in favour of the worker is to be made pursuant to section 37 of the 1987 Act and he is entitled to his current weekly wage rate during the period 31 January 2005 to 13 April 2005. The wage records which are in evidence demonstrate that the worker’s ordinary hours were 7.5 hours per day five days per week. It is agreed that, at the relevant time, his hourly rate was $17. Having regard to that evidence it appears, and I so find, that the worker’s current weekly wage rate at the date of injury was the sum of $637.50. It is that sum to which the worker is entitled during the relevant period of incapacity.
Having regard to the fact that the Respondent has paid compensation during the period of incapacity as found, the Respondent is to have credit in respect of payments made during that period.
DECISION
Paragraph (1) of the Certificate of Determination dated 11 December 2009 is revoked and the following order is made in its place:
“1. Award for the applicant at the rate of $637.50 per week from 31 January 2005 to 13 April 2005 pursuant to section 37 of the Workers Compensation Act 1987.”
Paragraph (2) of the Certificate of Determination dated 11 December 2009 is confirmed.
The Certificate of Determination dated 11 December 2009 is amended by the inclusion of the following order:
“3. The Respondent is to have credit in respect of payments made by way of weekly benefits in respect of the period 31 January 2005 and 13 April 2005.”
COSTS
The variations made by amendment of the Arbitrator’s Certificate of Determination have not had the result as sought by the worker in bringing this appeal. Those orders have been made to regularise the state of the record and I note that I have, in the course of my reasons, expressed substantial agreement with the Reasons as expressed by the Arbitrator. In the exercise of the Commission’s discretion with respect to awarding of costs, I conclude there should be no order as to costs of the appeal.
Kevin O’Grady
Deputy President
14 April 2010
I, RAMON LOYOLA, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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