Smith v Racetrue Pty Ltd
[2006] NSWWCCPD 187
•16 August 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Smith v Racetrue Pty Ltd [2006] NSWWCCPD 187
APPELLANT: Bruce John Smith
RESPONDENT: Racetrue Pty Ltd
INSURER:Allianz Australia Workers’ Compensation (NSW) Ltd
FILE NUMBER: WCC 18632-04
DATE OF ARBITRATOR’S DECISION: 22 March 2006
DATE OF APPEAL DECISION: 16 August 2006
SUBJECT MATTER OF DECISION: Whether compensation is payable separately in respect of loss of efficient use of the lower and upper arm arising from the same injury; section 66 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:7 August 2006
REPRESENTATION: Appellant: In person
Respondent: Ellison Tillyard Callanan, Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 22 March 2006 is confirmed.
There is no order as to the costs of this appeal.
BACKGROUND TO THE APPEAL
On 19 April 2006, Bruce John Smith sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 22 March 2006. The Respondent to the appeal is Racetrue Pty Ltd (‘Racetrue’). Racetrue’s workers compensation insurer is Allianz Australia Workers’ Compensation (NSW) Ltd (‘Allianz’).
Mr Smith was born on 4 September 1951 and is aged 54. Mr Smith worked as a panelbeater for Racetrue between 1995 and 28 April 1997. He subsequently commenced proceedings in the Compensation Court of NSW for weekly compensation from 4 September 2000 and for compensation for permanent loss. On 4 October 2001, Acting Judge Burke found that on the deemed date of injury (28 April 1997), Mr Smith “received injuries by way of hearing loss, tinnitus and to both lower arms”. His Honour said that the injuries to Mr Smith’s lower arms were as a result of his repetitive work as a panelbeater that resulted in tenosynovitis and bilateral carpal tunnel syndrome. Mr Smith had surgery for bilateral carpal tunnel release in early 2001.
His Honour found that Mr Smith had received all relevant entitlements in respect of his injuries up to and including 3 September 2000, and was totally incapacitated thereby on and from 4 September 2000. His Honour found Mr Smith suffered a “15 per cent permanent loss of efficient use of the right arm below the elbow, a 10 per cent permanent loss of efficient use of the left arm below the elbow and 50 per cent permanent loss of efficient use of sexual organs (penis)”. As a result, Mr Smith experiences “pain and suffering equivalent to 25 per cent of that of a most extreme case”. In addition, “[a]s a result of the general nature and conditions of his work the applicant suffers an 11.7 per cent binaural hearing loss”.
His Honour awarded Mr Smith:
(1) weekly compensation at the maximum statutory rate for a single man.
(2) compensation for permanent loss pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) as follows:
“a) $11,250 in respect of 15 per cent permanent loss of efficient use of the right arm below the elbow;
b) a lump sum payment of $7,000 in respect of a 10 per cent permanent loss of efficient use of the left arm below the elbow;
c) a lump sum payment of $23,500 in respect of a 15 per cent permanent loss of efficient use of sexual organs;
d) a lump sum payment of $7,605 in respect of 11.7 per cent binaural hearing loss of hearing.”(3) A lump sum payment of $12,500 in respect of pain and suffering resulting from such losses pursuant to section 67 of the 1987 Act.
(4) Medical, hospital and other expenses of treatment.
(5) Costs.
On 15 November 2004, Mr Smith lodged an ‘Application to Resolve a Dispute’ in respect of his claim for weekly benefits compensation, medical hospital or related expenses, compensation for permanent loss and pain and suffering, and damage to property (specifically to his car). The Application included reports from Dr Max Ellis, Surgeon, dated 31 March 2003, and Dr Thomas Davis, Surgeon, dated 28 June 2004. Dr Ellis said:
“Continuing pain and disability in both arms is related to the degenerative osteoarthritic change consequent on the work demands, affecting his elbows, wrists and fingers.
As well he has developed bilateral cubital tunnel syndrome affecting the ulnar nerves at the elbows. There is evidence ultrasonically of recurrent dislocation of the ulnar nerves at both elbows associated with a traumatic neuritis.
There is evidence of traumatic epicondylitis affecting the medial epicondyles of both elbows.
There is radiological confirmation of the degenerative arthritis in the elbows, wrists and hands ...
As well as a result of the bending and lifting involved in the heavy work of panel beating he has developed osteoarthritic change in the right hip joint and the right hip joint is now severely restricted. The changes in the right hip were aggravated by a fall on a boat in 1997 but the degenerative changes and pain and disability were pre-existent relating to his work commencing approximately 10 to 15 years ago.”
Dr Ellis assessed:
“a 30% permanent loss of efficient use of each upper limb at and above the elbow and a 25% permanent loss of efficient use of his right lower limb at and above the knee as a result of the osteoarthritic changes in his right hip joint.”
Relevantly, Dr Davis found “degenerative disease of the right and left elbow with associated bilaterally [sic] ulnar neuritis”, “degenerative disease of the wrist and finger joints with associated carpal tunnel syndrome”, “degenerative disease of the right hip”, and “degenerative disease of the right and left knees”. He said:
“It is my opinion that basically the claimant’s current condition from which he is allegedly suffering is not predominantly work-related. The nature and conditions of his employment may have aggravated the various degenerative changes that have been identified in different areas in the investigations carried out but as he has not worked since 1997, it is also my opinion that any aggravation that resulted from the nature and conditions of employment ceased at that time.”
Dr Davis assessed a “5% impairment” of each of Mr Smith’s right and left arms “above the elbow”, and a “5% impairment” of each of the right and left arms “below the elbow”, of which in each case, “3% can be attributable to the nature and conditions of the claimant’s employment and 2% to pre-existing degenerative changes”. He assessed a “a 10% impairment of the right leg above the knee including the knee and hip of which 7% can be attributable to the nature and conditions of the claimant’s employment and 3% due to pre-existing degenerative changes”.
An arbitrator conducted a teleconference with the parties on 24 January 2005 and a conciliation/arbitration conference on 16 February 2005. At the latter conference, the arbitrator found Mr Smith to be in receipt of weekly compensation at the maximum statutory rate, pursuant to the order of the Compensation Court dated 4 October 2001. She therefore found for Racetrue in respect of Mr Smith’s claim for weekly compensation. She also found for Racetrue in respect of Mr Smith’s claim for property damage to his car. The arbitrator directed that Mr Smith submit to medical assessment by an Approved Medical Specialist (‘AMS’) for the purpose of assessing the permanent loss of efficient use of his right and left arms and right knee, the assessment to be made in relation to an injury arising from the nature and conditions of Mr Smith’s employment between 1995 and 28 April 1997. The assessments of the right and left arms at or above the elbow were to incorporate assessments below the elbow.
On 11 April 2005, an AMS, Dr Mario Benanzio, Orthopaedic Surgeon, examined Mr Smith. Dr Benanzio’s Medical Assessment Certificate (‘MAC’) was issued by the Commission on 11 May 2005. While Dr Benanzio said that in his opinion Mr Smith had degenerative changes in his left shoulder, both elbows, right hip and right knee, he did not attribute any proportion of permanent loss of efficient use to those degenerative changes. In respect of the period before 1 January 2002, Dr Benanzio assessed Mr Smith’s total permanent loss of efficient use at 5% in respect of each of the right arm at or above the elbow, the left arm at or above the elbow, and the right leg at or above the knee.
On 5 July 2005, Mr Smith appealed against the medical assessment. The Medical Appeal Panel determined that Mr Smith should undergo a further medical examination, which was undertaken by a member of the Panel, Dr Roger Pillemer, Orthopaedic Surgeon. Dr Pillemer examined Mr Smith on 17 November 2005 and made a report to the Panel on that date. In its determination dated 13 February 2006, the Panel revoked the MAC dated 11 May 2005 and issued a new MAC in accordance with its findings. In its Statement of Reasons, the Panel said:
“22. The Appellant told the Panel member [Dr Pillemer] that following his carpal tunnel releases there was quite significant improvement in the numbness in his hands but he still gets occasional pins and needles in the median nerve distribution of both hands. His main ongoing problem is in both elbow regions with symptoms recurring particularly if he carries anything heavy, for example shopping bags, and if he does any activities his arms will ache for days after. The Appellant also complained of ongoing problems with the right hip region with minimal problems on the left side.
23. On examination there was full abduction of the shoulders on both sides and some restriction of internal rotation. On the left side there was evidence of rupture of the longhead of the biceps. Both elbows were sensitive to percussion.
24. On the basis of those examination findings and taking into account the Appellant’s complaints of pain and restriction the Panel considers that the Appellant suffers from a 15% loss of efficient use of each arm at or above the elbow. The Panel notes that the finding in respect of the right arm is consistent with the findings of Judge Burke who assessed the loss of efficient use below the elbow as a result of the carpal tunnel condition in October 2001.
25. The Panel considers that the Appellant suffers from a 15% loss of efficient use of the right leg at or above the knee. The Panel is of the opinion there is no evidence that the Appellant at any time suffered a work related injury to his right leg.
26. In proceedings before His Honour Judge Burke the Appellant said he last worked for the Respondent on 28 April 1997. In those proceedings he complained of problems with his forearms and tinnitus. He does not at any stage during the course of the hearing make any reference to having a problem with his right hip. It does not appear that the Appellant made any claim with respect to his hip until about December 2002. There is no mention of any problem with the right leg until the Appellant was examined by Dr Ellis on 25 March 2003. At that stage he gave a history of pain commencing in the right hip 10-15 years beforehand. The pain was allegedly at tolerable levels until 1997 when he was standing on a boat and fell backwards as a result of a collision.
27. The AMS, and accordingly the Panel, is required to accept that the Appellant has suffered a work related injury to the right hip. This is because the Arbitrator has referred the right leg for assessment. The referral form describes a deemed date of injury of 28 April 1997. The Panel is not assisted by any findings of the Arbitrator concerning precisely what injury the Appellant has suffered which affects efficient use of the right leg at or above the knee.
28. Considering the various investigations and examination findings the Panel is of the view that the pain now complained of by the Appellant is a consequence of degenerative change in the right hip. There is no evidence of trauma and there is no history of any frank incident causing injury to the right leg or hip. The Panel is of the view that the only possible injury to the right hip is by way of aggravation of degenerative changes. This is consistent with the Arbitrator’s referral which identifies a deemed date of injury. A deemed date of injury can only occur when an injury consists of a disease or the aggravation, exacerbating, acceleration or deterioration of the disease. The Panel is of the view that the degenerative change would have to some degree existed prior to the Appellant commencing employment with the Respondent. In the Panel’s view the injury can only be an aggravation, exacerbating, acceleration or deterioration of the degenerative changes in the hip. The Panel is of the view that a substantial part of the current loss is attributable to the pre-existing condition which, even in the absence of injury, would have been productive of a loss at this stage.”
In respect of injuries received before 1 January 2002, the Panel assessed that Mr Smith suffers from a 15% loss of efficient use of both arms at or above the elbow, and of the right leg at or above the knee. The Panel attributed a nil proportion of the loss of efficient use of the elbows to a pre-existing condition, but four fifths of the proportion of loss of efficient use of the right leg to a pre-existing (degenerative) condition, thereby giving rise to a 3% total permanent loss of efficient use of the right leg.
On 9 March 2006, a different arbitrator conducted a teleconference with the parties and, on 20 March 2006, conciliation having proved unsuccessful, she conducted an arbitration hearing. The Arbitrator gave her decision orally at the conclusion of the hearing.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 22 March 2006, records the Arbitrator’s orders as follows:
“1. That these proceedings in relation to the Applicant’s claim for medical expenses be discontinued. That the requirement to file a notice of discontinuance pursuant to Rule 74 is dispensed with.
2. That the Respondent pay the Applicant as a further lump-sum compensation under s66 of the Workers Compensation Act 1987 $750 in respect of 15% permanent loss of use of the Applicant’s right arm at or above the elbow, being the difference between the assessment by the Medical Appeals Panel dated 13 February 2006 and the determination of the Compensation Court of New South Wales dated 2 October 2001 (being 15% loss of use of the right arm below the elbow).
3. That the Respondent pay the Applicant as a further lump-sum compensation under s66 of the Workers Compensation Act 1987 $4,250 in respect of 15% permanent loss of use of the Applicant’s left arm at or above the elbow, being the difference between the assessment by the Medical Appeals Panel dated 13 February 2006 and the determination of the Compensation Court of New South Wales dated 2 October 2001 (being 10% loss of use of the left arm below the elbow).
4. That the Respondent pay the Applicant as lump-sum compensation under s66 of the Workers Compensation Act 1987 $2,250 in respect of 3% permanent loss of use of the Applicant’s right leg at or above the knee.
5. That the Respondent pay the Applicant, as lump-sum compensation under s67 of the Workers Compensation Act 1987, $5,000 in respect of pain and suffering.
6. That the Respondent pay the Applicant’s costs as agreed or assessed and I declare these proceedings to be complex.”
In the reasons for her decision given orally at the conclusion of the arbitration hearing (transcript page 46), the Arbitrator noted that Mr Smith’s claims for hearing loss and loss of efficient use of sexual organs were not before her. The Arbitrator therefore identified the issue before her as being whether Mr Smith is entitled to further compensation under sections 66 and 67 of the 1987 Act as a result of the nature and conditions of his employment between 1995 and 1997. She applied the decision of the High Court in KB Hutcherson Pty Ltd v Correia (1995) 183 CLR 50 (‘Correia’), where it was held that nothing in the Table of Compensation for Permanent Injuries in the 1987 Act (commonly referred to as the ‘Table of Maims’), or elsewhere in the Act, warrants making two assessments in the case of one leg arising from the same injury.
Although the Arbitrator made no specific finding in relation to the cause of the injury to Mr Smith’s right leg, Mr Smith gave oral evidence about this during the course of the arbitration hearing (transcript pages 32 to 33), the Arbitrator referred to the assessment of the right leg in the MAC issued by the Medical Appeal Panel (transcript page 48), and Racetrue impliedly accepted the assessment made by the Medical Appeal Panel when submitting that compensation of $2,250 was payable under section 66 in respect of a 3% loss of efficient use of the right leg (transcript pages 17 and 35). While there should have been a specific finding by the Arbitrator in relation to the cause of the injury to the right leg (Ooi v NEC Business Solutions Ltd [2006] NSWWCCPD 131, especially at paragraphs 36 to 40), I assume from having read the transcript that the Arbitrator accepted the opinion as to causation expressed by the Medical Appeal Panel. In my view, the medical evidence of Dr Ellis, Dr Davis and Dr Pillemer supports a finding that the injury to the right leg was the aggravation of a pre-existing degenerative condition caused by the nature and conditions of Mr Smith’s employment between 1995 and 28 April 1997.
The Arbitrator acknowledged that Mr Smith is suffering further problems in the elbow and above in each arm but said she was limited to looking at this as a further loss. Having taken into account the amounts awarded by Judge Burke in 2001, she made the section 66 awards for permanent loss set out in paragraphs 2 to 4 of her determination. With regard to section 67 compensation for pain and suffering, the Arbitrator found, based on Mr Smith’s evidence, that he is experiencing pain and suffering as a result of the further compensable loss under section 66. She assessed that pain and suffering as equivalent to 10% (impliedly of the most extreme case, in respect of which section 67(1) prescribes that compensation not exceeding $50,000 is payable) and therefore made the award set out in paragraph 5 of her determination (being 10% of $50,000). The Arbitrator found Mr Smith had discontinued his claim in respect of medical expenses, there being an existing Compensation Court order for their payment and no specific claim having been made.
ISSUES IN DISPUTE
Mr Smith disputes the Arbitrator’s determination of his claim for compensation for permanent loss of efficient use of his arms. The parties’ submissions on this issue are discussed below.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”
I have had regard to Practice Directions Numbers 1 and 6, the documents before me, and the submission by the parties. Mr Smith requested an oral hearing so that he could present his case. Racetrue submitted that the appeal could be determined solely ‘on the papers’. In view of the fact that Mr Smith is self-represented, claims to be dyslexic and appears to have difficulty in making submissions in writing, I determined that I should hear the parties’ further oral submissions at a hearing. The hearing was conducted on 7 August 2006.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the issue of the Arbitrator’s determination in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I note that the compensation for permanent loss at issue exceeds $5,000 and constitutes more than 20% of the amount awarded in the decision appealed against. I am therefore satisfied that the section 352 threshold has been met, and I grant leave to appeal.
FRESH EVIDENCE
Fresh evidence on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No 6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
Racetrue seek leave to introduce new evidence, namely a letter to Allianz from Shaw McDonald, solicitors, acting for Mr Smith, dated 13 April 2006. Racetrue submits this letter, that gives notice of a forthcoming claim for compensation by Mr Smith for hearing loss, confirms its understanding that no decision has been made on any claim for further hearing loss. I note this letter postdates the Arbitrator’s determination and, in my view, is relevant in relation to Mr Smith’s submissions in the appeal, which include submissions on his hearing loss. I therefore grant leave to introduce this letter as new evidence.
SUBMISSIONS
In his written appeal, Mr Smith submits compensation should be paid in accordance with the percentage permanent loss of efficient use stated in the medical reports submitted in support of his claim, and that he should also receive compensation for hearing loss in accordance with a report by Dr Brian J Williams, Ear Nose and Throat Surgeon, dated 30 November 2004. Mr Smith contends that the solicitor who originally acted for him gave him bad advice, that the AMS, Dr Pillemer, made mistakes in his report to the Medical Appeal Panel, that he was misled by Commission staff, and that Commission staff, the Registrar and both arbitrators who have been involved in these proceedings have lied to him. The whole experience has left him out of pocket and mentally and physically distressed.
In oral submissions at the hearing, Mr Smith emphasised that the conditions affecting his arms and right leg are a ‘disease’, as Judge Burke said in his decision on 4 October 2001 (at paragraph 10), referring to his earlier decision in Perry v Tanine Pty Ltd (1998) 16 NSWCCR 253 (‘Perry’). Mr Smith contended that the High Court decision in Correia was not applicable because, in that case, the worker had suffered an injury, whereas Mr Smith’s condition is a disease. Mr Smith contended that the decision in Perry supported his case, and that he is entitled to compensation for separate injuries to both his lower and upper arms.
Racetrue submits that the Arbitrator’s determination is correct. In particular, the Arbitrator correctly applied the High Court decision in Correia in determining that compensation for permanent impairment to a limb under section 66 of the 1987 Act in relation to the same injury can only be assessed as a single item even where different parts of the limb are affected. Different parts of a limb can only be separately assessed if more than one injury occurred. Racetrue also submits that as no new claim for hearing loss had been made by Mr Smith and, therefore, no decision had been made on such a claim, there was no issue in relation to hearing loss before the Arbitrator; similarly, in relation to Mr Smith’s reference to his developing haemorrhoids as a result of his employment as a panel beater.
In oral submissions at the hearing, Ms Ames, for Racetrue, noted that the word ‘injury’ is defined in section 4 of the 1987 Act to include a ‘disease’. She referred to the NSW Court of Appeal decision in Rail Services Australia v Dimoski [2004] NSWCA 267, at paragraph 31, where the Court interpreted the words “same injury” in the version of section 67(1) of the 1987 Act in effect prior to the amendment of the Act on 1 January 2002, as meaning the injurious event giving rise to the injury or disease. In Mr Smith’s case, his conditions arise from the same injurious events, the nature and conditions of his employment between 1995 and 1997.
Ms Ames drew attention to the ‘Table of Maims’ in section 73 of the 1987 Act, applicable in respect of injuries received before 1 January 2002. Note (d1) to the Table states:
“Loss of an arm at or above the elbow includes the loss of the arm below the elbow and loss of the hand and is to be compensated as a loss, or a proportionate loss, of a single item only (namely, the loss of the arm at or above the elbow).”
Ms Ames noted that in Correia, the High Court overruled the NSW Court of Appeal in J Odlin International Pty Ltd v Kaljanac (1993) 29 NSWLR 632, and determined that the points mentioned in the Table (“at or above” and “below”) refer to the uppermost point of affectation below which use is lost. Dr Pillemer’s assessment in his report to the Medical Appeal Panel did take into account the loss of efficient use below the elbow. Ms Ames submitted that the Medical Appeal Panel decision was not now appellable and the Arbitrator correctly made her award of compensation for loss of efficient use in accordance with the Medical Appeal Panel assessment.
DISCUSSION
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, the Appellant, Mr Smith, must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSW WCC PD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.
Essentially, Mr Smith seeks a review of the whole of the proceedings since he first lodged an ‘Application to Resolve a Dispute’ with the Commission. Whilst I acknowledge the frustration he obviously feels about the proceedings in the Commission and, in particular, at the significant time and energy he has committed to pursuing these proceedings, I am not empowered to undertake such a broad review. My role is limited to reviewing the decision of the Arbitrator made on 22 March 2006. I note that neither Mr Smith’s claim for compensation for further hearing loss nor his claim for compensation in respect of haemorrhoids can be included in this review.
Mr Smith gave oral evidence that his hearing loss claim was no longer being handled by Shaw McDonald, solicitors, whose letter to Allianz, dated 13 April 2006, giving notice of a further hearing loss claim by Mr Smith, was tendered by Racetrue. Mr Smith said he received a letter from Allianz about a week ago with a decision on his claim for compensation for further hearing loss. I am not satisfied that he has filed an ‘Application to Resolve a Dispute’ with the Commission in respect of that decision, and, in my view, the Commission therefore has no jurisdiction to consider any aspect of his claim for compensation for further hearing loss. Similarly, there is no evidence that Mr Smith has made a claim for workers compensation in respect of haemorrhoids and, in my view, the Commission has no jurisdiction with respect to this condition.
It should also be noted that I am not empowered to conduct a review of the Medical Appeal Panel decision. The Panel’s assessment of the degree of permanent loss of efficient use of Mr Smith’s arms and right leg is binding, subject only to his right to apply to the Supreme Court for a review of this, which I understand he has not exercised.
Mr Smith confirmed at the hearing that he seeks a review of clauses 2, 3 and 4 of the Arbitrator’s decision of 22 March 2006 which award compensation for loss of efficient use of his arms and right leg. He contends that Dr Pillemer’s assessment of the percentage loss of efficient use of those limbs, and that of the Medical Appeal Panel, which relied on Dr Pillemer’s assessment, is wrong. In particular, Mr Smith submits that the injuries to his lower and upper arms should be separately compensated and that the High Court decision in Correia does not apply in his case.
I have reviewed clauses 2, 3 and 4 of the Arbitrator’s decision and, in my view, as submitted by Racetrue, the Arbitrator correctly applied the law. It makes no difference whether Mr Smith’s injury is further categorised as a disease or a frank injury – both fall within the definition of ‘injury’ in section 4 of the 1987 Act. An important issue raised by Mr Smith is whether the decision in Correia is applicable in his case. While the facts of that case concerned separate assessments of loss of efficient use of the upper and lower legs, rather than, as in Mr Smith’s case, arms, the principle is the same. As the High Court said, at page 219, “nothing in the Table or the Act itself warrants the making of two assessments in the case of one leg” where the assessment relates to injuries arising from the same injurious events. Reference to the Notes to the “Table – Compensation for Permanent Injuries” (the Table of Maims) makes this clear. The relevant Note in the case of the upper limbs is (d1), quoted in paragraph 30 above. This provides that where there is a loss of efficient use of both the upper arm and the lower arm, the loss is to be treated as a single item of loss and referred to as “the loss of the arm at or above the elbow”.
Thus, the Medical Appeal Panel correctly assessed the loss of efficient use of Mr Smith’s lower and upper arms as a single item in respect of each arm and referred to this as a loss of efficient use of the arms “at or above the elbow”. The Arbitrator was bound by the Panel’s assessment, and correctly took into account the loss of use of the arms determined by the Compensation Court, for which Mr Smith had already been compensated, in determining his entitlement to compensation for further loss of efficient use of the arms. The relevant calculations are as follows:
• 15% loss of efficient use of the right arm entitles Mr Smith to $12,000 compensation under section 66 in accordance with the Table of Maims. He has already received $11,250 pursuant to the order of the Compensation Court and a further $750 is therefore payable.
• 15% loss of efficient use of the left arm entitles Mr Smith to $11,250 compensation under section 66 in accordance with the Table of Maims. He has already received $7,000 pursuant to the order of the Compensation Court and a further $4,250 is therefore payable.
The Arbitrator’s award of $2,250 compensation in respect of a 3% loss of efficient use of Mr Smith’s right leg also accords with the Table of Maims. Mr Smith has not challenged her award of compensation for pain and suffering under section 67 of the 1987 Act, and the award is in accord with the relevant evidence given by Mr Smith at the Arbitration hearing (transcript page 29, and pages 32 to 34). The Arbitrator found a further 10% loss in respect of section 67 - 10% of the maximum compensation payable ($50,000) permitted by section 67(1) is $5,000, the compensation awarded by the Arbitrator.
In conclusion, I am not satisfied that the Arbitrator made any legal or factual error in her determination of the compensation payable to Mr Smith, and her decision should be confirmed.
DECISION
The decision of the Arbitrator dated 22 March 2006 is confirmed.
COSTS
There is no order as to the costs of this appeal.
Robin Handley
Acting Deputy President
16 August 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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