South Western Sydney Local Health District v Hennings - [2014] NSWWCCPD 11

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	South Western Sydney Local Health District v Hennings [2014] NSWWCCPD 11
APPELLANT:	South Western Sydney Local Health District
RESPONDENT:	Gillian Hennings
INSURER:	Employers Mutual Ltd NSW Treasury Managed Fund
FILE NUMBER:	A1-13907/12
ARBITRATOR:	Mr John Wynyard
DATE OF ARBITRATOR’S DECISION:	29 October 2013
DATE OF APPEAL HEARING:	10 February 2014
DATE OF APPEAL DECISION:	10 March 2014
SUBJECT MATTER OF DECISION:	Section 60(5) of the Workers Compensation Act 1987; mandatory requirement to remit matter for referral to an Approved Medical Specialist; legal and factual issues to be determined following assessment by Approved Medical Specialist
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	Oral
REPRESENTATION:	Appellant:	Ms M Dulhunty, instructed by Thompson Eslick Solicitors
Respondent:	Mr B Carney, instructed by P K Simpson & Co
ORDERS MADE ON APPEAL:	1. The appellant is granted leave to appeal pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2. Paragraph one of the Certificate of Determination dated 29 October 2013 and the Arbitrator’s findings relevant to causation are revoked and the following order is made in substitution: “The matter is remitted to the Registrar for referral to an Approved Medical Specialist in accordance with s 60(5) of the Workers Compensation Act 1987 for assessment under Pt 7 (Medical Assessment) of Ch 7 of the Workplace Injury Management and Workers Compensation Act 1998 to assess whether the cost of medical treatment proposed by Dr Abraszko is, as a result of injury, reasonably necessary. The Approved Medical Specialist is to be provided with all evidence before the Commission.” 3. The matter is to be remitted to another Arbitrator following the assessment made by the Approved Medical Specialist for determination of outstanding matters. 4. There is no order as to costs of the appeal.

BACKGROUND

Ms Gillian Hennings was employed by South Western Sydney Local Health District t/as Campbelltown Hospital (the appellant) as a hospital assistant in its catering department between 1988 and March 2003. Some years after commencement of that work, Ms Hennings began to experience pain and disability in various parts of her anatomy. She also developed a condition diagnosed as plantar fasciitis in both feet.
In 2002 Ms Hennings commenced proceedings in the former Compensation Court of NSW seeking an award of compensation against the appellant. Ms Hennings alleged injury to her neck, right arm, back, right leg, right foot, left leg and left foot. Those injuries had allegedly resulted from the physical demands of her work performed after 1995. The claim was for weekly compensation and lump sum compensation in respect of permanent impairment of her neck and back and in respect of permanent loss of efficient use of her legs, right arm and feet.
Those proceedings were settled by agreement when the matter came before the former Court in February 2003. Short Minutes of Order, which are presently in evidence, were filed at that time. The consent orders there recorded were:
“(1)Award for the respondent with respect to the applicant’s claim for weekly compensation.
(2)     The respondent pay the applicant lump sum compensation pursuant to Section 66:
(a)[$7,000] in respect of 10% permanent loss of use of the applicant’s right leg below the knee
(b)[$3,500] in respect of 5% permanent loss of use/impairment of the applicant’s left leg below the knee
(3) The respondent pay the applicant lump sum compensation of [$9,500] pursuant to Section 67 for pain and suffering.
(4)     The applicant’s claim for interest is dismissed.
(5)     Award for the respondent with respect to the applicant’s claim for Section 60 expenses.
(6)     The employer to pay the worker’s costs, (including qualifying fees and counsels [sic] fees for advice on evidence and second conference in sum of [$250]) as agreed (such amount as agreed to include any entitlement to interest) or assessed.
(7)     No interest shall be payable on the above sums provided that 90% is paid within 28 days from the date of the award or receipt by the insurer of a Centrelink charge whichever is the later.
(8) The worker acknowledges that he/she has been informed by the employer and insurer that as a compensable person a liability might exist to pay certain amounts in respect of medical and treatment expenses to the Health Insurance Commission pursuant to the Health and Other Services (Compensation) Act 1995.
(9)     Other orders or notations:
Award for the respondent in respect of applicants [sic] claim for injury to the back, neck and right arm.
DATED: 21^st February 2003” (with corrected numbering)
The present proceedings were commenced by Ms Hennings following denial by the appellant and its insurer of a further claim made by her in 2012. That claim was for lump sums in respect of further permanent loss of efficient use of each leg below the knee, lump sum pursuant to s 67 of the Workers Compensation Act 1987 (the 1987 Act) and medical expenses including the cost of proposed treatment being spinal surgery. I note in passing that the description of injury as it appears in the application does not reflect the true nature of Ms Hennings’ allegation.
The application came before Arbitrator John Wynyard for conciliation/arbitration on 24 October 2013. The matter proceeded to hearing and a determination, the reasons for which were delivered extempore, was then made. A transcript (T) of the proceedings has been produced and made available to the parties. A Certificate of Determination was issued on 29 October 2013 which recorded the following orders:
“The determination of the Commission in this matter is as follows:
1.I remit to the Registrar for referral to an AMS pursuant to s.60(5) of the 1987 Act the following question:-
Is the surgery proposed by Dr Abraszko (at Exhibit A, p.49(a)) and Dr Stalley (at Exhibit A, p.79) reasonably necessary?
Evidence:Exhibit A, Exhibit B, Exhibit 1, Exhibit 2
2.By consent I remit to the Registrar for referral to an AMS the following:-
i)Date of injury: 1 September 2000 (deemed)
ii)Matter for assessment: Left Leg below the knee, Right Leg below the knee.
iii)Method of assessment: Table of Disabilities
iv)Evidence:
For the applicant:-
·      Exhibit A
·      Exhibit B
For the first respondent:
·      Exhibit 1
·      Exhibit 2
A brief statement of reasons for determination, in accordance with Rule 15.6 of the Workers Compensation Commission Rules 2006 [sic, 2011], is attached.”

PRELIMINARY MATTERS

Threshold matters

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and (4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

Hearing

Both parties consent to this appeal being heard “on the papers” without the need for conduct of a conference or hearing as is permitted by the provisions of s 354(6) of the 1998 Act. However, it was, in my view, apparent that the orders which were made by the Arbitrator might constitute an interlocutory decision within the meaning of s 352(3A) of the 1998 Act. Should those orders be interlocutory, the appeal may not proceed in the absence of leave granted by the Commission as is permitted by s 352(3A). No attention to this question had been given by the parties in submissions made on appeal. That question, and the fact that a number of matters concerning a proper understanding of the reasons given by the Arbitrator had not been addressed in those submissions, led me to conclude that I did not have sufficient information to proceed on the papers.
In the circumstances, a hearing of the appeal was directed. That hearing was conducted on 10 February 2014, at which time each party was represented by counsel. A transcript (TA) of that hearing has been produced.

Interlocutory

It was accepted by both counsel at the hearing of the appeal that the orders made by the Arbitrator, which are the subject of this appeal, are interlocutory in nature. The appellant acknowledged that the appeal may only proceed should there be a grant of leave as is provided by s 352(3A) of the 1998 Act which is as follows:
“(3A) There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The fundamental dispute between the parties which was agitated before the Arbitrator concerned the question as to whether Ms Hennings had suffered a lumbar spine disability which was causally related to the work caused condition of plantar fasciitis. The Reasons expressed and the findings made by the Arbitrator with respect to that question have given rise to considerable confusion. This difficulty is discussed below.
It became clear at the hearing of the appeal that both parties construed the Arbitrator’s Reasons as constituting a finding that Ms Hennings had suffered a back disability caused by the injury in respect of which Ms Hennings had earlier been compensated. That back disability was characterised as a “consequential condition”, a term appearing in decisions of the Commission in matters concerning claims in respect of a condition allegedly resulting from injury (see discussion in Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4).
Having regard to the nature of the Arbitrator’s reasoning, and the parties’ submissions relating to findings concerning matters in dispute, I am of the view that it is necessary and desirable for the proper and effective determination of the dispute that leave be granted to proceed with the appeal, and I so order.

THE NATURE OF THE DISPUTE BEFORE THE ARBITRATOR

At the hearing of the appeal it was made clear by Mr Carney, counsel for Ms Hennings, that the allegation made before the Arbitrator was that, as a result of the plantar fasciitis, Ms Hennings had acquired an altered gait. That altered gait had persisted over a lengthy period of time and had caused the lumbar spine condition as diagnosed. Such gave rise to the need for the surgical treatment in respect of which the claim was made. I note that it had been put to the Arbitrator on behalf of Ms Hennings that the “gait pattern” associated with the plantar fasciitis had caused “significant aggravation of her pre-existing lumbar condition” (at T14).
The nature of the claim brought by Ms Hennings, as I have attempted to describe immediately above, stands in stark contrast to the allegations made with respect to injury as found at Pt 4 of her Application to Resolve a Dispute. I note that leave had not been sought at the hearing before the Arbitrator to amend the terms of that allegation. No point was taken by the appellant concerning the manner in which injury had been particularised. I also note that the manner in which submissions were put on behalf of the parties concerning the suggested basis of the appellant’s liability gave rise to considerable confusion. That may explain the difficulties arising from the manner in which the Arbitrator dealt with this claim as is discussed hereunder.
The disputed claim made in respect of medical, hospital and rehabilitation expenses included one with respect to proposed treatment to Ms Hennings’ lumbar spine and is one that fell within the terms of s 60(5) of the 1987 Act.
With respect to the separate claim made pursuant to s 66, counsel confirmed at the appeal hearing that the disputed “further permanent impairment” claimed in respect of each leg below the knee was said to have been causally related to an alleged deterioration of the condition of plantar fasciitis. As noted below, there is no challenge on appeal to the order of remitter to the Registrar made by the Arbitrator, as appears in order [2] of the Certificate of Determination dated 29 October 2013, concerning that claim.

THE ARBITRATOR’S DECISION

The Arbitrator, when delivering his extempore decision, commenced by noting the nature of the claims which had been brought by Ms Hennings. The claim brought pursuant to s 66 of the 1987 Act was described as being “in relation to injuries to her feet, that is to say, her ‘plantar fasciitis’” (at T21).
The Arbitrator made reference to the order made in 2003 in respect of s 66 entitlement and stated (at T22):
“…it seems clear to me that the award [made in 2003 pursuant to s 66] was made on the basis of the evidence that was before the Court. And the orders in relation to the right leg and left leg below the knee related to the impairment or loss of use caused by the condition of plantar fasciitis. It would seem that the claims in relation to the left foot and right foot were simply overlooked, but I’m satisfied that the intent of the compensation paid was initially in relation to that condition.”
The Arbitrator noted that those claims before him brought pursuant to s 66 “relate to the continued problems [arising from] plantar fasciitis about which there is no argument that it was work related…” (at T22). An order was subsequently made remitting that question to the Registrar for referral to an Approved Medical Specialist (AMS).
The Arbitrator proceeded to deal with the substantial dispute which he described as follows (at T23): “[t]he question for determination in this case relates to the application under section 60 for treatment for the back”.
It is clear from his Reasons that the Arbitrator had identified the question raised as being whether Ms Hennings was entitled to an order in respect of the proposed treatment of her lumbar spine pursuant to s 60(5) of the 1987 Act which provides:
“(5) The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute must be referred by the Registrar for assessment under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act, unless the regulations otherwise provide.”

The Arbitrator noted that settlement of the proceedings conducted in the former Court included the entry, by consent, of an award in favour of the appellant in respect of Ms Hennings’ allegations of injury to her back, neck and right arm. Reference was then made to the appellant’s s 74 notice wherein denial of ‘injury’ to the lumbar spine is made (at T22).
The Arbitrator proceeded to make reference to the decision of the President of the Commission in Tolevski v Zanardo and Rodriguez Sales & Services Pty Ltd [2013] NSWWCCPD 9 (Tolevski) and the following statement was made (at T23):
“In Tolevski it was decided that if there was an application for future section 60 expenses, the matter had firstly to go to the – to an AMS for an advisory opinion under section 60(5) of the 1987 Act, prior to any decision being made as to liability.”
The Arbitrator appears to have then expressed the view that the facts of Tolevski were distinguishable from those of the present case when he stated (at T24):
“… in view of the fact that this case is slightly different in that [the appellant] enjoys an award in its favour in relation to the lumbar spine, it seems to me that it’s appropriate to make a determination as to whether that award is relevant in the present day. And if it were, then I would make the referral in the way we approach the matter.
So the issue is as to whether the protection given to the Respondent in 2002 is still a shield against this latest application.”

The Arbitrator made brief reference to the medical evidence concerning the state of Ms Hennings’ back prior to 2003 which had been tendered before the former Court. He stated (at T25) that “…there was clearly an existing history of back pain [prior to settlement of the Court proceedings]…”.
The Arbitrator proceeded to state (at T25):
“The award in favour of the insurer [sic] must therefore stand, unless there has been a subsequent development that is causally related to the employment injury that has caused injury or aggravation to the injury of such a nature that it can now be said that the injury to the back is of sufficient moment that it attracts the provisions of s 66 and the – and an entitlement to compensation, where back in 2002 it was acknowledged there was none.”
The Arbitrator then considered the expert medical evidence and the evidence of Ms Hennings concerning the onset of back and leg symptoms. The Arbitrator then stated (at T29):
“The question is, has it been - has the condition of the spine deteriorated as a result of the work injury since that time? And the - there is a common sense connection between the continued condition of the plantar fasciitis which is [sic] caused an altered gait, and in turn caused the already symptomatic back condition to deteriorate to the extent where it constitutes a fresh injury [sic] of the - over what was presented to the parties in 2003.”

The Arbitrator immediately proceeded to state:
“I’m therefore satisfied that the matter should go for a referral to an AMS pursuant to section 60 (5). And I remit the matter to the Registrar for referral to an AMS pursuant section 60 (5), as follows with the surgery proposed Dr Abraszko at page 49(a) and Dr Stalley at Exhibit A, page 79, reasonableness [sic]…”

The transcript thereafter records exchanges between the Arbitrator and counsel concerning the particular terms of reference appropriate to orders of remitter referred to earlier in his Reasons. The transcript does not record the formal orders; however, as noted earlier, those orders are recorded in the Certificate of Determination dated 29 October 2013.

ISSUES RAISED ON APPEAL

The appellant’s written submissions in support of the appeal do not include a clear statement of the grounds upon which the Arbitrator’s determination is challenged. In the circumstances, counsel for the appellant at the hearing of the appeal confirmed that the following errors were asserted:
(a) rejection by the Arbitrator of the appellant’s submission that there had been no relevant “change” in relation to the condition of Ms Hennings’ back since the date of entry of the award in 2003 and, further, failing to find that Ms Hennings was estopped from bringing a claim in respect of the proposed treatment of the lumbar spine in these proceedings;
(b)that the Arbitrator erred in remitting the questions raised with respect to that proposed treatment to the Registrar for referral to an AMS, and
(c)that the Arbitrator had erred in finding a causal connection between “the original injuries to the lower limbs and any subsequent lumbar spine condition” (as appears at submissions [23]).
The question as to whether the Arbitrator had erred in his approach to the application of s 60(5) was raised during argument advanced at the hearing of the appeal.

EXPERT MEDICAL EVIDENCE RELEVANT TO MS HENNINGS’ BACK DISABILITY

Ms Hennings alleged that the condition of her lumbar spine had resulted from the altered gait brought about by reason of the plantar fasciitis. The appellant asserted that there has been no relevant “change” in Ms Hennings’ back condition since settlement in 2003. If that last proposition was accepted, it was argued before the Arbitrator, the claim in respect of the cost of proposed treatment must fail. It is appropriate, to enable a proper understanding of that dispute, to examine the expert medical evidence before the Arbitrator which addressed relevant history and diagnosis concerning the back disability.

The following is a brief summary of relevant matters recorded in reports of the various medical practitioners who have examined Ms Hennings over the relevant period. Those practitioners have either treated Ms Hennings or have been qualified on behalf of one or other of the parties to provide an opinion for the purposes of these proceedings. It must be remembered that Ms Hennings also relied on her own evidence concerning this matter. The following summary is in chronological order:
(a)   Dr Chandra Dave, orthopaedic surgeon, treated Ms Hennings following referral by her general practitioner, Dr Leung. In a report, dated 23 November 1995, Dr Dave recorded the following history:
“[Ms Hennings] has been having a long history of lower back pain which has recently been aggravated by a fall on 12 February, 1995. The pain is described as quite broad distribution over the lumbar sacral region. It does not radiate down her legs and she does not get any neurovascular type symptoms in her lower limbs.”
Dr Dave expressed the opinion that Ms Hennings’ lower back pain was “from ligament strain and there doesn’t appear to be any disc or mechanical type pathology”.
(b)   Dr Henry Stenning, practitioner in musculoskeletal medicine, examined Ms Hennings in September 2001 at the request of her solicitors for the purpose of providing a report for presentation in the proceedings before the former Court. Dr Stenning noted, relevantly, that Ms Hennings had experienced “intermittent back pain which comes and goes”. Dr Stenning considered that the condition of Ms Hennings back, and other conditions, had resulted from the work injury with the appellant. An assessment was made of permanent impairment of the back of eight per cent.
(c)   Dr Elias Matalani, consultant occupational physician, examined Ms Hennings at the request of her solicitors in April 2002. He provided a report which had been prepared for presentation in the proceedings commenced in the former Court. Dr Matalani recorded the following history:
“In 1993 [Ms Hennings] developed pain in the back and the neck which she relates to the repetitive bending with trays to put them in the trolleys. Also she would have to repetitively bend to clean the ovens. In addition she would have to carry heavy boxes of drinks and stack them in the fridge and clean the fridge, which include[d] a fair amount of repetitive bending.”
Dr Matalani relevantly diagnosed “chronic musculoligamentous strain of the lower back”. The view was expressed that the condition of the back was work related. An assessment of 10 per cent permanent impairment of the back was made by Dr Matalani.
(d)   Dr Hemchander Rao, general surgeon, examined Ms Hennings at the request of her solicitors and prepared a report, dated 20 September 2002, which was to be tendered in the proceedings before the former Court. Dr Rao recorded a history of “pains in the lower back”. The back pain was intermittent. Ms Hennings described her work as being “very difficult and demanding with long hours”. A diagnosis was expressed by Dr Rao of “chronic soft tissue damage” to the lumbar spine. An assessment of eight per cent permanent impairment of the back was made by Dr Rao.
(e)   Dr Michael Lowy, sexual health physician, examined Ms Hennings in November 2002 at the request of her solicitors and prepared a report for presentation in the proceedings before the former Court. Dr Lowy recorded a history that Ms Hennings had experienced neck and back pain in 1993 associated with repetitive bending arising from loading and unloading trays in a trolley.
(f)    Dr Paul Stalley, orthopaedic surgeon, was consulted by Ms Hennings following a referral by her general practitioner, Dr Gupta, in 2011. A report dated 4 May 2011 by Dr Stalley records that Ms Hennings “has a good story of lumbar canal stenosis, confirmed on her recent MRI scan, where she has a L3/L4 block”. Dr Stalley recorded in that report that he planned “to decompress [Ms Hennings’] lumbar spine … on Tuesday 14 June 2011”.
(g)   Dr Matthew Giblin, orthopaedic surgeon, examined Ms Hennings at the request of her solicitors for the purpose of obtaining a qualified opinion for presentation before the Arbitrator in the present proceedings. An examination took place in September 2011 and a report dated 21 September 2011 is in evidence. Dr Giblin recorded a history as follows:
“About five years ago [Ms Hennings] started to develop some low back pain with radiation down the legs, more so the right that the left. This pain seemed to be worse with walking, changing positions, sitting and it bothers her at night. [Ms Hennings] was referred to Dr Abraszko on 15 February 2011 and she advised surgical intervention. She is yet to have that surgery.”
Dr Giblin expressed the following opinion:
“It is my opinion [Ms Hennings’] injuries are consistent with the nature of her work activities and I consider she has bilateral plantar fasciitis going back to 1995. Due to the nature of her gait, she has aggravated a pre-existing condition of her lumbar spine, and that is arthritic change associated with stenosis.”
(h)   Dr Renata Abraszko, neurosurgeon and spinal surgeon, was consulted by Ms Hennings following referral by Dr Gupta. In a report, dated 29 February 2012, addressed to Dr Gupta, Dr Abraszko records that Ms Hennings presented on that day with back pain radiating to the left leg. It is there recorded that Ms Hennings had decided “to go ahead with the surgery” and Dr Abraszko was seeking approval from the insurer for a “L3-S1 decompression and fusion”.
(i)     Dr Richard Powell, orthopaedic surgeon, was qualified to provide an opinion for presentation in these proceedings by the insurer of the appellant. Dr Powell, in a report dated 12 June 2012, recorded a history provided by Ms Hennings of “the insidious onset of lower back pain approximately three to four years ago. There was no specific precipitating incident. [Ms Hennings] attributes this to her prolonged period of altered weight bearing”.
The symptoms reported to Dr Powell by Ms Hennings included intermittent sharp pain affecting her lower back with radiation into the left buttock and down the posterolateral aspect of the left leg to the calf. Ms Hennings also reported intermittent pins and needles affecting both feet. Ms Hennings denied any previous injuries affecting her feet or back. Dr Powell’s diagnosis concerning the back was that Ms Hennings had “developed symptoms in the lower back associated with multi-level degenerative lumbar disc disease”. Dr Powell expressly stated that he did not accept that Ms Hennings’ plantar fasciitis and any associated alteration in her gait pattern was the cause of any significant aggravation of her pre-existing lumbar spine condition. He expressed the view that her current symptoms reflect the natural history of her degenerative lumbar spine condition.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.

Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”

I have earlier observed that the reasons expressed and the findings made by the Arbitrator have given rise to considerable confusion. That confusion has no doubt arisen by reason of the manner in which this claim had been presented. At the commencement of proceedings the Arbitrator is recorded as stating: “I think the issue really has been identified as being whether there has been a subsequent injury [sic] to the back following the award for the respondent, who [sic] was given, at some time in the past. Is that the issue, ladies and gentlemen?” The parties are recorded as agreeing that such was the issue for determination (at T4-5). That description of the issue in dispute was, notwithstanding the parties’ agreement, flawed and tended to confuse.
The issue for determination before the Arbitrator was the question of the appellant’s liability, or otherwise, in respect of the medical and hospital expenses claimed with respect to the proposed treatment of Ms Hennings’ lumbar spine. That question depended, in turn, upon a determination as to whether Ms Hennings’ argument that the present state of her lumbar spine results from the accepted injury, being plantar fasciitis, was accepted.
The appellant’s case as put before the Arbitrator placed emphasis on the evidence which tended to establish that there has been, since the 1990’s, a significant lumbar spine disability. It was argued before the Arbitrator, and is argued on this appeal, that the present state of the lumbar spine cannot be said to be a “consequential condition” but rather that the back condition is one of long standing and that a “commonsense evaluation of the causal chain does not lead to the conclusion that [Ms Hennings’] lower back/lumbar spine condition is a consequence of the lower limb injuries” (submission on appeal at [23]). That submission was founded upon matters stated by Kirby P, as he then was, concerning causation in compensation law in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796.
Had that last argument been accepted by the Arbitrator, a need would have arisen to determine whether entry of the award with respect to back injury gave rise to an estoppel. I note that the term ‘estoppel’ was not uttered by either of the parties’ representatives nor by the Arbitrator during the conduct of the arbitration. Notwithstanding that fact, and putting aside the question as to whether such issues should have been determined before referral to an AMS as required by s 60(5), the question of estoppel, as acknowledged by counsel at the hearing of the appeal, required determination by the Arbitrator.
As noted above (at [14]) both parties treat the reasons expressed by the Arbitrator as demonstrating that he had determined that the condition of Ms Hennings’ lumbar spine had resulted from the altered gait. The Arbitrator’s reasoning concerning this matter has been set out at [30] and [31] above. It may be seen that whilst the Arbitrator posed the question of causation he, on one view, did not resolve that question. It is clear that a strict reading of those reasons demonstrates that following the statement as to the nature of the question, the Arbitrator proceeded to remit the matter to the Registrar for referral to an AMS without reaching a conclusion concerning the question raised. On the other hand, it is reasonably clear that the Arbitrator considered that the President’s decision in Tolevski was distinguishable from the present case and that he intended to address the question of causation without there being an antecedent referral to an AMS.
Notwithstanding the confusion and doubt raised as to the nature of his conclusions, it seems to me that the parties are correct in submitting that the Arbitrator had reached the view that the altered gait was causative of Ms Hennings’ back disability and in such circumstances, adopting the words of the Arbitrator found at T24, the award entered in 2003 is not “a shield against this latest application”. That statement by the Arbitrator seems to suggest that he was there considering the concept of estopple.
Since the hearing before the Arbitrator and the making of the orders which are challenged on this appeal, the President’s decision in Tolevski, which had been the subject of an appeal brought by the employer, was upheld by the Court of Appeal. That decision was delivered on 17 December 2013: Zanardo and Rodriguez Sales & Services Pty Ltd v Tolevski [2013] NSWCA 449 (Tolevski No 2). The reasons expressed by the Court of Appeal are, as acknowledged by the parties, relevant to the issues raised in the course of this appeal.
Among the complaints made by the appellant is an assertion that the Arbitrator had erred in finding as a fact that the back condition was causally related to the plantar faciitis, and had erred in remitting the questions raised concerning the proposed treatment to the Registrar for referral to an AMS. At the hearing of the appeal, the decision of Tolevski No 2 was raised. That decision concerned the question of the proper construction of s 60(5). The terms of that subsection are noted at [21] above. The facts in that matter concerned a dispute regarding an employer’s liability for proposed medical treatment of a condition that was said to be causally related to a compensable work injury. The evidence suggested that the aggravation of an osteoarthritic condition of the worker’s hips, which required the subject treatment, had been causally related to a fall in the course of his employment in which the worker injured his left leg and knee.
When construing s 60(5) in Tolevski No 2, Leeming JA (with whom Beasley P and Tobias AJA agreed) stated (at [22]):
“The ordinary literal meaning of ‘Any such dispute’ is that it means every such dispute, and not merely disputes confined to particular issues (such as causation). The grammatical meaning of s 60(5) is unambiguous. I am doubtful that this is a case where recourse to extrinsic materials pursuant to s 34 of the Interpretation Act 1987 is available (see Shannongrove Pty Ltd v Environment Protection Authority [2013] NSWCCA 179 at [21]), but in any event they do not assist the applicant.” (emphasis included in original)
In dealing with argument raised on behalf of the appellant in Tolevski No 2, Leeming JA stated that s 60(5) operated “…by means of mandatory referral of something which is not (or at least need not be) a ‘medical dispute’ as defined in s 319. The previous practice of discretionary referral under s 321 says nothing as to the proper construction of s 60(5)” (at [33]).
Following the resolution of the question as to the proper construction of s 60(5), that is that the subsection is mandatory, Leeming JA proceeded to make a number of obiter statements including the following (at [35]):
“First, it is not clear to me that questions of causation are foreign to ‘medical disputes’ in any event, or that there is utility in appealing to a dichotomy between liability disputes and medical disputes. A ‘medical dispute’ is a dispute or a question about any of the matters listed in s 319, including the ‘degree of permanent impairment of the worker as a result of an injury’ and ‘whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion’ (paragraphs (c) and (d) emphasis added). It is not necessary to decide the point for present purposes, but that language of causal connection which is squarely within both the definition of ‘medical dispute’ and the conclusive effect of s 326 suggests that it may be best to avoid speaking in generalities to the effect that ‘issues of liability’ are matters for the Commission and ‘medical issues’ are for an AMS. Still less is it helpful to refer to ‘primary causation’ and ‘secondary causation’. Commonsense suggests that there is not a bright line delineating causation from medical evidence. Issues of causation often involve disputed medical opinions. Thus, in the present case the decision of the Arbitrator was based upon the evaluation of the medical evidence which had been tendered by the parties (and where, as the recommendation of Mr Tolevski’s orthopaedic surgeon reveals, he did not shrink from expressing an opinion as to causation). That tends to emphasise that there is nothing antithetical in the Commission making determinations of this nature informed, in addition, by the opinion of an AMS.” (emphasis added)
The observations made by His Honour in Tolevski No 2 were the subject of exchanges with counsel at the hearing of the appeal. It was accepted by counsel appearing on behalf of Ms Hennings that those observations appear to suggest that any decision concerning questions of liability, that is, as stated by Handley AJA in Haroun v Rail Corporation NSW [2008] NSWCA 192; 7 DDCR 139 “factual and legal issues”, should be deferred until such time as an AMS has provided an assessment as required by s 60(5) (at TA7). Counsel for the appellant argued that the decision of Tolevski No 2 could be distinguished from the present case and argument was advanced which seemed to support the general approach adopted by the Arbitrator concerning determination of factual and legal issues without there being an antecedent remitter for referral to an AMS. The challenge was not to the Arbitrator’s approach but rather to his conclusion reached concerning causation.
The decision in Tolevski No 2 establishes that all disputes which fall within the terms of s 60(5) must be remitted to the Registrar for referral to an AMS for assessment under Pt 7 of Ch 7 of the 1998 Act. Having regard to the obiter statements made by Leeming JA as noted above, I consider that the proper procedure requires that such remitter should occur before any determination of factual or legal issues is made.
Having regard to the decision in Tolevski, and given Ms Hennings’ acceptance of the appropriate procedure to be adopted as there stated, I consider that the Arbitrator has erred in purporting to determine the question of causation before remitter for assessment by an AMS. In the circumstances it is both unnecessary and inappropriate to determine on this appeal the merits or otherwise of the appellant’s submissions concerning causation and estoppel. That task must be undertaken by a different arbitrator following the required assessment by an AMS. I consider it appropriate on this appeal to set aside all findings and orders except that which is not challenged, being the order of remitter to the Registrar of the dispute concerning the claim brought pursuant to s 66. An appropriate order of remitter in accordance with s 60(5) should be made on this appeal. Once that assessment has been made the matter is to come before another arbitrator for determination afresh. In such circumstances the arbitrator, as observed in Tolevski No 2, will be “informed…by the opinion of an AMS” (per Leeming JA at [35]). Appropriate orders appear below.

DECISION

The appellant is granted leave to appeal pursuant to s 352(3A) of the 1998 Act.
Paragraph one of the Certificate of Determination dated 29 October 2013 and the Arbitrator’s findings relevant to causation are revoked and the following order is made in substitution:
“The matter is remitted to the Registrar for referral to an Approved Medical Specialist in accordance with s 60(5) of the Workers Compensation Act 1987 for assessment under Pt 7 (Medical Assessment) of Ch 7 of the Workplace Injury Management and Workers Compensation Act 1998 to assess whether the cost of medical treatment proposed by Dr Abraszko is, as a result of injury, reasonably necessary. The Approved Medical Specialist is to be provided with all evidence before the Commission.”
The matter is to be remitted to another Arbitrator following the assessment made by the Approved Medical Specialist for determination of all outstanding matters.

COSTS

Each party made an application that a costs order be entered concerning the appeal which would make provision for the need for the hearing conducted on 10 February 2014. Notwithstanding the broad discretion granted to the Commission by the provisions of the former s 341 of the 1998 Act as to costs, I do not consider, having regard to the general circumstances of the matter and its outcome, that any order as to costs should be made. The costs of the original arbitration should follow the determination made on remitter to an Arbitrator. There is no order as to costs of the appeal.

Kevin O'Grady
Deputy President

10 March 2014

I, KATHRYN CAMP, 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