Stainer v Hawkesbury Community & RSL Homes Ltd
[2022] NSWPIC 620
•7 November 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Stainer v Hawkesbury Community & RSL Homes Ltd [2022] NSWPIC 620 |
| APPLICANT: | Colleen Stainer |
| RESPONDENT: | Hawkesbury Community & RSL Homes Ltd |
| Member: | John Isaksen |
| DATE OF DECISION: | 7 November 2022 |
CATCHWORDS: | WORKERS COMPENSATION - Claim for further lump sum compensation for permanent impairment of the back and loss of use of both legs for injury in 1996; respondent raises issues in regard to the referral to a Medical Assessor for assessment; reference to Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd; Held – rejection of issues raised by respondent; referral for assessment for permanent impairment of the back and loss of use of both legs. |
DETERMINATIONS MADE: | 1. There are to be no amendments to the Application to Resolve a Dispute (ARD), or any deletion of any attachments to the ARD, for the referral that is to be made to the Medical Assessor for the assessment of permanent impairment and loss. |
| ORDERS made: | 1. This matter is remitted to the President for referral to a Medical Assessor as follows: Date of injury: 22 October 1996 Body Parts: Back, Right leg at or above the knee; Left leg at or above the knee Method of Assessment: Table of Disabilities 2. The documents to be referred to the Medical Assessor are as follows: (a) ARD with attachments; (b) Reply with attachments, and (c) A copy of this decision. |
STATEMENT OF REASONS
BACKGROUND
The applicant in these proceedings, Colleen Stainer, sustained an injury to her lower back on 22 October 1996 while employed as an Assistant Nurse with the respondent, Hawkesbury Community & RSL Homes Ltd.
Terms of Settlement were entered into between the applicant and three past employers of the applicant, being Anglican Retirement Villages, Kurrajong and District Hospital Society, and the respondent in these proceedings in the Compensation Court of New South Wales on 28 October 2003, whereby the three named employers were to pay the applicant the following:
(a) $12,000 for 20% permanent impairment of the back;
(b) $11,250 for 15% permanent loss of use of the right leg at or above the knee;
(c) $7,500 for 10% permanent loss of use of the left leg at or above the knee, and
(d) $14,250 for pain and suffering.
A copy of the Terms of Settlement are included in the Application to Resolve a Dispute (ARD) and are quite blurry, but it would appear that the respondent in these proceedings contributed $24,250 of the lump sum payments which totalled $45,000.
The applicant now claims lump sum payments pursuant to s 66 of the Workers Compensation Act (the 1987 Act) for the following:
(a) 60% permanent impairment of the back;
(b) 75% permanent loss of use of the right leg at or above the knee, and
(c) 75% permanent loss of use of the left leg at or above the knee.
In written submissions contained in the Reply and at the preliminary conference conducted on 4 October 2022, the respondent raised the following issues as an impediment to there a being a referral to a Medical Assessor for the assessment of permanent impairment:
(a) that the Injury Description in the ARD stating: "the applicant was assisting a patient with showering when the patient became violent. our client instructs that she was assaulted by the patient, coursing her to fall back, hitting her back on a steel handrail and fell to the ground" be struck out;
(b) that there be a determination by arbitration as to the true circumstances in which the applicant sustained a low back injury in the course of employment with the respondent on 22 October 1996, and
(c) that paragraph 18 of the applicant’s statement dated 28 April 2022 which states: “Prior to this workplace injury I had never had any problems with my knees, or any ongoing problems with my lower back” be struck out.
In the absence of agreement being reached between the parties at the preliminary conference as to the terms of the referral to a Medical Assessor, the following Directions were made:
“1. The date of injury in the ARD is amended to read: 22 October 1996.
2. The applicant is to file and serve written submissions by 25 October 2022 in regard to the following issues raised by the respondent:
(a)The description of how the applicant sustained injury on 22 October 1996 as set out in her statement dated 28 April 2022; and
(b)Paragraph 18 of her statement dated 28 April 2022 being struck out, as sought by the respondent.
3. The respondent is to file and serve written submissions in reply by 1 November 2022.
4. A written decision on the terms of the referral to the Medical Assessor of the claim for permanent loss compensation will be provided after 1 November 2022.”
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a) the ARD and attached documents;
(b) Reply and attached documents;
(c) written submissions filed by the applicant on 25 October 2022, and
(d) written submissions in reply filed by the respondent on 1 November 2022.
FINDINGS AND REASONS
Whether there should be a change to the description of the injury in the ARD and there to be findings made by the Commission as to the circumstances of the applicant’s injury
The applicant’s evidence and submissions
The applicant has provided a statement dated 28 April 2022 wherein she states:
“On about 22 October 1996 I suffered injury during the course of my employment with RSL Homes. At this time I was showering a patient when he became violent. I was punched and pushed. I slipped backwards and hit my spine against a steel hand rail suffering injury to my back, pelvis, neck, right shoulder, right leg and left leg. As I fell down, I landed heavily on my left knee and left side of my body. I reported the incident straightaway to the registered nurses on duty at the time.”
The claim form completed by the applicant on 30 October 1996 states:
“Whilst showering a resident who was very resistive I called for help another nurse came & helped he has hold of 1 arm and I had hold of the other of the shower hose making it an extremely difficult task.”
A Register of Injuries completed by the registered nurse in charge, Ruth Chapman, on 23 October 1996 includes: “Mr Green (a demented resident) was resistive & physically aggressive during the process making it extremely difficult.”
The applicant submits that there is no issue that she sustained an injury to her lower back while showering a patient on 22 October 1996. The respondent has admitted that the applicant sustained injury to her lower back in the award that was entered by the Compensation Court in 2003.
The applicant submits that there should be the standard referral to a Medical Assessor that is made in circumstances where a contested hearing has not resulted in specific findings as to injury.
The respondent’s submissions
The respondent submits that there is nothing in the contemporaneous material, including the claim form, the report of injury by Ms Chapman, and a handwritten note from the work colleague who came to assist the applicant, which supports the circumstances of injury now alleged by the applicant. The respondent submits that one would expect some early account of the dramatic and traumatic facts now asserted by the applicant. The discrepancy may not be due to any conscious dishonesty by the applicant, but she may be confusing the incident with another incident in her employment, or she is unintentionally embellishing the event.
The respondent refers to various medical reports to submit that the description of the incident by the applicant has become extraordinarily dramatic over time. For instance, the applicant’s general practitioner, Dr Sahasrabuddhe, writes in a report dated 11 June 1997 that: “While lifting a patient at work she felt sudden severe back pain with radiating into both legs right and left.” However, the history taken by Dr Dickinson, an orthopaedic surgeon retained by the respondent, in a report dated 5 July 2021 reads:
“…she was ‘bashed by a patient’ in October 1996. She said the patient was a normal sized patient but was aggressive and punched and kicked her and pushed her against a supporting bar in the shower. She fell to the ground.”
The respondent submits that the actual mechanism of injury may have important consequences for the proper determination of permanent impairment due to the subject injury, as distinct from a pre-existing condition, injury or abnormality. It submits that simply allowing the Medical Assessor to reconcile the different accounts of injury risks an error on the part of the Medical Assessor, requiring additional delay and costs with appeal procedures.
The respondent asks that the referral to the Medical Assessor include a notation that the following is assumed:
“The Applicant's injury occurred on 22 October 1996. She was not assaulted, but sustained an onset of low back pain in the following circumstances: Whilst showering a dementia patient who was very resistive the Applicant called for help. A male nurse came to assist. The male nurse had hold of 1 arm, the Applicant had hold of the other arm and the shower hose. The Applicant injured her back by twisting and turning to control the patient.”
Determination
It is now well recognised in this jurisdiction that it is the role of a Member of the Commission (or previously an Arbitrator) to make a determination as to whether a worker has sustained an injury in the course of their employment, but that the assessment of any permanent impairment is a ‘medical dispute’ as provided for in s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and comes within the exclusive domain of a Medical Assessor. This is well summarised by Bellew J in Favetti Bricklaying Pty Limited v Benedek [2017] NSWSC 471 (Benedek) at [89]:
“Under s. 319 of the WIMA, the “medical dispute” in the present case is a dispute concerning the degree of permanent impairment of the first defendant. Pursuant to
s. 321(4)(a), the Registrar has no power to refer the matter for an assessment by an AMS where liability is in issue and has not been determined by the Commission. That necessarily presupposes that the Commission has the jurisdiction to resolve the issue of liability prior to the matter being referred to an AMS. The AMS, in turn, is called upon to assess the level of permanent impairment for the injury for which liability has been determined.”Section 321 (4) of the 1998 Act has subsequently been repealed, but it remains the situation that the Commission must resolve the issue of liability as to injury.
The respondent does not dispute that the applicant sustained an injury to her back on 22 October 1996 while in the course of her employment with them and agreed to pay her part of lump sum benefits totalling $45,000 pursuant to ss 66 and 67 in 2003. However, once there has been a finding or agreement as to injury, it falls to a Medical Assessor to assess any permanent impairment or loss. That is consistent with what Emmett J of the Court of Appeal said in Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd [2014] NSWCA 264 (Bindah).
The dispute in Bindah involved Consent Orders, rather than a contested issue on injury, but the principles set out by the Court of Appeal remain applicable to this dispute. Emmett JA makes it clear that it is only necessary for a Member (or arbitrator) of the Commission to find there is an injury pursuant to s 4 of the 1987 Act. His Honour said at [119]:
“Consequently, Order 3 of the Certificate of Determination on 21 November 2011 simply recorded the arbitrator's determination that Mr Bindah had incurred an injury. That determination involved a conclusion on a matter of causation, being that Mr Bindah's employment was a substantial contributing factor to his injury. The arbitrator did not need to make a determination about the precise nature of the injury, because that matter fell within the province of a medical dispute, which was for the approved medical specialist, and, if necessary, the Appeal Panel, to determine. The arbitrator's determination that Mr Bindah had suffered an injury meant that he had suffered an injury according to the definition of that term in s 4 of the Compensation Act. That definition includes both a personal injury and an aggravation, acceleration, exacerbation or deterioration of a disease. It was then for the approved medical specialist to determine the degree of permanent impairment that resulted from the injury. That determination involved a conclusion on a matter of causation, as indicated by the words in bold.”
Emmett JA also said at [110]:
“Having regard to the conclusive effect of s 326, it is desirable to avoid drawing a rigid distinction between jurisdiction to decide issues of liability and jurisdiction to decide medical issues. There is no bright line delineating causation from medical evidence. Issues of causation may well involve disputes between medical experts that must be resolved by an approved medical specialist or by an Appeal Panel (see Zanardo v Tolevski [2013] NSWCA 449 at [35]).”
The respondent has not provided any authorities or precedents to support its argument that it is necessary in this dispute for the Commission to make specific findings as to how the applicant sustained injury to her back on 22 October 1996 or to insist upon a description of how the injury occurred which is set out in the submissions attached to the Reply.
There is no dispute that the applicant sustained trauma to her back on 22 October 1996 which meets the definition of ‘injury’ in s 4 of the 1987 Act. Once that is established then, consistent with what was said by Emmett JA in Bindah, the dispute can be referred to a Medical Assessor for assessment of permanent impairment and loss.
There is therefore no need, obligation or requirement for the description of injury in the ARD, or what is set out in the applicant’s statement, to be amended or deleted from the material that is forwarded to the Medical Assessor, nor for the assumptions as to the circumstances of the injury that have been drafted by the respondent to be forwarded to the Medical Assessor.
Whether paragraph 18 of the applicant’s statement dated 28 April 2022 should be struck out
The applicant’s evidence and submissions
Paragraph 18 of the applicant’s statement dated 28 April 2022 states: “Prior to this workplace injury I had never had any problems with my knees, or any ongoing problems with my lower back.”
The applicant submits that the rules of evidence do not apply in the Commission, and it is a matter which goes to the credit of the applicant and may be quite harmful to her when considered by a Medical Assessor. The applicant submits that paragraph 18 of her statement should remain as is.
The respondent’s submissions
The respondent submits that there are various records of the applicant having problems with her lower back prior to the incident on 22 October 1996. These include:
(a) reference in a report from Dr Bryant, Drug and Alcohol Services, Cumberland Hospital, dated 5 November 1997 of a X-ray and CT scan of the lumbar spine taken in June 1992 which reports minor compression of the L5 nerve root;
(b) that same report from Cumberland Hospital referring to an admission to that hospital in December 1993 when the applicant is recorded as stating that she used strong analgesic medication for back pain and that she “became addicted”;
(c) a CT scan report dated 15 August 1994 which reports a right lateral disc protrusion at L5/S1, and
(d) references in some medical reports of the applicant sustaining an injury to her back when lifting a patient on to a bus while working with Kurrajong Nursing Home.
The respondent submits that the referral to the Medical Assessor should include a notation that the applicant had some pre-existing low back injury or injuries, and the Medical Assessor’s attention is to be drawn to certain references to this in the Reply.
The respondent submits that merely because the rules of evidence do not apply, that does not warrant some ‘free for all’ approach that can be misleading. The respondent submits that the Commission has the power to reject misleading evidence so as to avoid the risk of failing to achieve a proper consideration of the issues in a particular dispute.
Determination
I do not regard the applicant’s statement that she did not have any “ongoing problems” with her lower back prior to the work injury in October 1996 to be misleading. The applicant concedes that she had a prior injury to her lower back in 1993. This part of the applicant’s statement which the respondent objects to is no more than her own recollection of the condition of her lower back prior to the injury she sustained in October 1996. That might not stand up to scrutiny undertaken by the Medical Assessor, but that is a matter for consideration by the Medical Assessor, along with a consideration of all other available evidence.
The application of s 323 of the 1998 Act, which allows for a deduction in the assessment of impairment for any previous injury or pre-existing condition or abnormality, has been set out by Schmidt J in Cole v Wenaline Pty Limited [2010] NSWSC 78 at [30]:
“Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.”
31. It is a matter for the Medical Assessor to engage in whatever interrogation of the applicant might be suitable, along with a review of all the medical material in the ARD and Reply, so as to “have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality.” Paragraph 18 of the applicant’s statement dated 28 April 2022 will not be struck out.
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