State of New South Wales v Abdul
[2018] NSWWCCPD 41
•20 September 2018
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | State of New South Wales v Abdul [2018] NSWWCCPD 41 | |
| APPELLANT: | State of New South Wales | |
| RESPONDENT: | Habib Samsullah Abdul | |
| INSURER: | Employers Mutual Limited as agent for the NSW Self-Insurance Corporation (NSW Treasury Managed Fund No 2) | |
| FILE NUMBER: | A1-5099/17 | |
| ARBITRATOR: | Mr W Dalley | |
| DATE OF ARBITRATOR’S DECISION: | 12 January 2018, 21 March 2018 and 14 May 2018 | |
| DATE OF APPEAL DECISION: | 20 September 2018 | |
| SUBJECT MATTER OF DECISION: | Distinction between final and interlocutory decisions – Maricic v Medina Serviced Apartments Pty Ltd [2007] NSWWCCPD 196; ss 4(a), 4(b)(ii) of the Workers Compensation Act 1987 –Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648 applied; s 9A of the Workers Compensation Act 1987 – Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75 applied; ss 44C–44E and 82A of the Workers Compensation Act 1987 – indexation of benefits; calculation of pre-injury average weekly earnings after the first 52 weeks of weekly payments | |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | HWL Ebsworth Lawyers |
| Respondent: | Khan Legal | |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 12 January 2018 (as corrected by the Certificate of Determination dated 21 March 2018) is amended at paragraph three by: (a) deleting the word “disease”; (b) deleting the words “section 4(b)(ii)” and inserting instead “section 4(a)”, and (c) adding after the words September 2016 “to which the employment was a substantial contributing factor in accordance with s 9A”. 2. The Certificate of Determination dated 12 January 2018 is otherwise confirmed. 3. The Certificate of Determination dated 21 March 2018 is amended at paragraph 7(d) to delete the figure of “$725.45” and insert instead “$712.85”. 4. The Certificate of Determination dated 21 March 2018 is otherwise confirmed. | |
INTRODUCTION
Mr Habib Samsullah Abdul alleged injury to his neck and back in the course of his employment with the State of New South Wales (the appellant) on 1 September 2016. The insurer initially accepted liability and paid weekly compensation and treatment expenses until 19 January 2017. On 4 January 2017, the insurer issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), declining the claim on the basis that Mr Abdul had not suffered an injury within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act) and that his employment was not a substantial contributing factor to any injury (s 9A of the 1987 Act).
Mr Abdul brought proceedings in the Commission for reinstatement of his weekly payments and treatment expenses, alleging that in addition to injury to his neck and back, he had also injured his right shoulder, suffered a concussion injury, and developed a secondary psychological condition.
The Arbitrator issued a Certificate of Determination (COD) on 12 January 2018. He accepted that Mr Abdul injured his neck and low back as alleged and that Mr Abdul developed a psychological condition as a result of those injuries. The Arbitrator was not satisfied that Mr Abdul suffered injury to his right shoulder or a concussion in the incident. He ordered the appellant to pay Mr Abdul’s treatment expenses pursuant to s 60 of the 1987 Act.
The Arbitrator further determined that Mr Abdul had no capacity for work and also determined Mr Abdul’s pre-injury average weekly earnings and ordinary weekly earnings. He did not determine the amount of weekly payments.
The appellant was given the opportunity to provide written submissions on the indexation of Mr Abdul’s weekly payments pursuant to s 82A of the 1987 Act, which had been raised by Mr Abdul’s legal representative at the arbitration.
The Arbitrator determined the indexation of benefits in a subsequent COD dated 21 March 2018.
On 5 April 2018, the appellant requested the Arbitrator reconsider the COD issued on 21 March 2018 in respect of the weekly payment calculations.
On 18 April 2018, the appellant appealed both of the Arbitrator’s decisions. The Appeal Against Decision of Arbitrator (appeal) was stayed until the outcome of the reconsideration application.
In a COD issued on 14 May 2018, the Arbitrator declined to reconsider the determination dated 21 March 2018, but with the consent of the parties, amended the statement of reasons. The statement of reasons and the amendments are discussed below.
BACKGROUND
Mr Abdul was employed by the appellant at the Nepean Hospital as a Hospital Assistant. He had held that position for about two and a half years before the alleged injury. Mr Abdul said that on 1 September 2016 he was involved in removing large 640 litre rubbish bins from a tug, when he fell backwards, landing on his back and hitting the road with his head.
The injury was reported. He was taken to Nepean Hospital, where he was examined and released to the care of his General Practitioner, Dr Muhammad Awais. On 3 September 2016, Dr Awais arranged for investigations of the cervical and lumbar spine and an MRI of the brain. The doctor also arranged for specialist review.
Mr Abdul did not return to any employment.
ON THE PAPERS
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.”
Both parties indicate that they are content for the appeal to be determined without any conference or formal hearing.
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing. This is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no issue that the monetary threshold pursuant to s 352(3) of the 1998 Act has been met.
Mr Abdul disputes that the appeal has been lodged within the time required by s 352(4) of the 1998 Act. He submits that the Arbitrator finally determined liability in the COD dated 12 January 2018, that is, that all issues were determined other than the quantum of weekly payments.
Mr Abdul objects to the appellant being given leave to bring the appeal out of time. The first basis of that objection is that at the time of lodging the Opposition to Appeal Against Decision of Arbitrator, the appellant had not commenced weekly payments. In failing to do so, the appellant had contravened s 352(5A) of the 1998 Act.
Additionally, Mr Abdul says that the appeal has low prospects of success, and that the case on appeal is different to the case put before the Arbitrator.
The appellant submits in reply that time runs from the date upon which the Commission finally and conclusively determines the proceedings, which the decision dated 12 January 2018 did not do. It says the issue of quantum of weekly payments remained outstanding and until the COD dated 21 March 2018 was issued the Commission’s decision-making role had not become functus.
The appellant relies on the High Court decision in Licul v Corney[1] and the Presidential decision in Unilever Australia Ltd v Petrevska.[2]
[1] [1976] HCA 6; 180 CLR 213 (Licul).
[2] [2013] NSWWCCPD 3.
The appellant submits that it is self evident that a party does not appeal until the Court below has determined all issues.
The appellant observes that a “decision”, as defined by s 352(8) of the 1998 Act, includes a determination of the Commission. The appellant refers to s 352(1) of the 1998 Act, which provides:
“A party to a dispute in connection with a claim for compensation may appeal to the Commission constituted by a Presidential member against a decision in respect of the dispute by the Commission constituted by an Arbitrator.”
As I understand the appellant’s submission, it is that “the decision” referred to in s 352(1) is the final decision made that resolves the entirety of the dispute between the parties, which in the present case was not disposed of until the Arbitrator issued the COD on 21 March 2018. That COD finally disposed of the dispute between the parties.
The appellant says that Mr Abdul has never raised the appellant’s failure to pay the award of weekly payments and says that the position has been rectified.
The appellant disputes the assertions that the case has no merit and was not the case put to the Arbitrator. It relies on its substantive submissions.
Further, the appellant says that its final ground of appeal (ground 4) arises from the Arbitrator’s findings in respect of the calculation of the CPI indexation of weekly entitlements, which was the subject of the final COD dated 21 March 2018.
Consideration
Subsection 352(1) of the 1998 Act provides for an appeal “against a decision in respect of the dispute by the Commission constituted by an Arbitrator” (emphasis added). A “decision” is defined in subs 352(8) to include “an award, interim award, order, determination, ruling and direction”. Subsection 352(3A) provides:
“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 meaning of “interlocutory” in subs 352(3A) is undefined.
In Licul, Gibbs J said (footnotes omitted):
“The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view - which was preferred by the Court of Appeal in Salter Rex and Co v Ghosh - is that the test depends on the nature of the application made to the Court. The other view which, since Hall v Nominal Defendant, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?”[3]
[3] Licul, [11].
The observations of the High Court as to what constitutes an interlocutory order provide some guidance but need to be considered in the context of the legislative and procedural framework of the Commission.
There are many Presidential decisions as to whether a decision is or is not interlocutory. It is not necessary to refer to each of them, however the following decisions assist in identifying the established principles applicable to this case.
In P & O Ports Limited v Hawkins[4] the issue decided by an Arbitrator (which was the subject of an application for leave to appeal) was whether the deemed date of injury in a ‘disease’ case was before or after 31 December 2001. The resolution of that issue dictated whether the worker’s lump sum entitlement was to be assessed by the AMS on the basis of the Table of Disabilities, or whole person impairment. The Arbitrator’s finding did not involve an actual award of compensation. Deputy President Roche concluded that the decision was of an interlocutory nature, observing that:
“The Arbitrator’s determination that the deemed date of injury was 20 July 2005 is more difficult. It amounts to a finding on a preliminary issue that is relevant to deciding if the Respondent Worker’s lump sum compensation is to be calculated under the Table of Disabilities or under the new WorkCover Guides for whole person impairment applicable to injuries sustained after 31 December 2001. The finding has not determined the parties’ rights or whether the Respondent Worker is entitled to compensation, as would be the case if a determination had been made on an issue such as injury, worker or substantial contributing factor.”[5]
[4] [2007] NSWWCCPD 87 (Hawkins).
[5] Hawkins, [44].
Acting Deputy President Snell (as he then was) applied Hawkins in Maricic v Medina Serviced Apartments Pty Limited,[6] saying:
“The Appellant Worker submits the nature of the Arbitrator’s determination is that ‘the injuries determined to have been suffered as a result of the appellant’s workplace accident have been finally and bindingly determined.’ Reference is made to both the decision in Hawkins, and the decision of the High Court in Licul v Corney. I accept this submission. It is consistent with the reasoning in Hawkins. It is the nature of the Arbitrator’s decision that the Appellant Worker could no longer succeed in recovering compensation of any description, on the basis of symptoms in his neck and left shoulder, on the basis they resulted from the pleaded incident. This decision on ‘injury’ is final and binding, and should not be characterized as ‘interlocutory’.”[7]
[6] [2007] NSWWCCPD 196 (Maricic).
[7] Maricic, [20].
The distinction was further examined by Deputy President Roche in EdmundDiab v Salem Naji,[8] where he determined:
“The Arbitrator’s order concerning remitter has been made following his determination of a question concerning liability, that is, the occurrence of injury to both the neck and back. The determination of those issues was made as required by the provisions of section 293(3) of the 1998 Act...
The Arbitrator’s determination concerning the dispute as to the nature of the injury received by Mr Naji is such that, in the words of Gibbs J, it does ‘... finally dispose of the rights of the parties.’ Those findings are conclusive, and bind the parties and define the rights and liabilities of each concerning the various heads of entitlement to compensation benefits as provided by the Acts. The Appellant, on this appeal, challenges those findings of fact made by the Arbitrator concerning injury. In the circumstances, I conclude that the Arbitrator’s decision, including those findings of fact, is not one of an interlocutory nature within the meaning of section 352(8).”[9]
[8] [2010] NSWWCCPD 33 (Naji).
[9] Naji, [20]–[21].
In the present case, the COD issued by the Arbitrator on 12 January 2018 (as it appears after the Arbitrator corrected the numbering in the COD dated 21 March 2018) relevantly determined as follows:
“ …
2. Award for the respondent in respect of the claims of injury by way of concussion and injury to the right shoulder.
3. The Commission finds that the applicant suffered a disease injury as defined in section 4(b)(ii) of the 1987 Act in respect of the neck and lower back in the course of his employment with the respondent on one September 2016 and thereafter suffered the onset of a consequential psychological condition and the Commission further determines:
(a)the applicant had no current work capacity from and after 1 September 2016 as the result of injury;
(b)the applicant's pre-injury average weekly earnings as at 1 September 2016 were $900.42;
(c)the applicant's ordinary weekly earnings were $884.69 per week as at 1 September 2016.
(d)the relevant index numbers proclaimed pursuant to section 82A(4) were;
(i)1/10/16 - 1.0037
(ii)1/04/17 - 1.0146
(iii)1/10/17 - 1.0072.
(e)The applicant's claim for weekly payments in the period 1 September 2016 to 30 September 2016 has been satisfied by payments already made pursuant to section 36(1) of the 1987 Act and the applicant has no entitlement to further weekly payments in respect of that period.
4. The respondent is to make weekly payments pursuant to section 36, section 37 and section 82A of the 1987 Act from 1 October 2016 to date and continuing in accordance with the findings of the Commission.
5. The respondent is to file and serve written submissions within 14 days addressing the quantum of such weekly payments having regard to the findings of the Commission set out above and, if required, further determination as to quantum of weekly payments will then be made having regard to those submissions.
6. The respondent is to pay the applicant's reasonably necessary treatment expenses pursuant to section 60 of the 1987 Act in respect of injury to the neck, lower back and consequential psychological condition.
…”
The above awards and orders made have finally determined the issues of:
(a) injury;
(b) whether Mr Abdul had recovered from the effects of any injury;
(c) whether Mr Abdul had capacity for employment;
(d) Mr Abdul’s entitlements to treatment expenses pursuant to s 60 of the 1987 Act;
(e) his pre-injury average weekly earnings, and
(f) his ordinary weekly earnings.
Those findings are conclusive, and bind the parties and define the rights and liabilities of each concerning liability for injuries and the entitlement to compensation benefits provided by the Acts. It follows that the determination made on 12 January 2018 cannot be regarded as interlocutory.
In so far as the appeal arises from the COD issued by the Arbitrator on 12 January 2018, s 352(4) of the 1998 Act requires that an appeal from that decision must be filed within 28 days of the decision. The appellant filed the appeal on 18 April 2018, well after the time for filing the appeal expired. The appellant requires leave to bring the appeal out of time.
Rule 16.2(12) of the Workers Compensation Commission Rules 2011 (the 2011 Rules) provides that a Presidential member may extend the time for filing an appeal in exceptional circumstances. It must also be in the interests of justice to do so.[10]
[10] Andrew Bryce v Department of Corrective Services [2009] NSWCA 188.
In similar circumstances to the present case, Deputy President O’Grady in Transley Solutions Pty Ltd v Steve Kagiorgis[11] granted an extension of the time to appeal where there had been a final order made at an interlocutory stage. The Deputy President referred to and applied the High Court decision in Bunning v Cross,[12] observing:
“In Bunning, Jacobs J spoke of the concept of an ‘interlocutory stage’ of proceedings. His Honour found that there was no necessity for a party to seek leave to challenge a finding made in the Supreme Court that evidence had been unlawfully obtained ‘in order to enable this Court at this later stage in the proceedings to consider the question whether the evidence was unlawfully obtained ...’. In the present case, whilst the Appellant may have elected to challenge the Arbitrator’s finding at that ‘interlocutory stage’, the fact that no such application was made does not prevent the Commission at this later stage from reviewing that factual finding which forms the basis of the final order.”[13]
[11] [2010] NSWWCCPD 45 (Kagiorgis).
[12] [1978] HCA 22; 141 CLR 54.
[13] Kagiorgis, [28].
Mr Abdul does not assert any prejudice if leave were to be granted. The appellant appeals not only the decision made on 12 January 2018, but also the decision issued on 21 March 2018. Had the appellant unsuccessfully appealed the earlier decision within the 28 day period, the ultimate determination would have been delayed and the parties would now be faced with the costs of a second appeal. In the circumstances of this case, I am of the view that it is in the interests of justice that the time to appeal the decision dated 12 January 2018 is extended and the grounds of appeal arising out of the decision of the Arbitrator dated 12 January 2018 should be determined.
THE EVIDENCE
Mr Abdul’s evidence
Mr Abdul provided a statement dated 4 October 2017.[14] He said that in the course of his employment as a Hospital Assistant, he was moving large 640 litre rubbish bins from a tug. As he was leaning on the bar used to open the tailgate of the tug, he fell backwards, with his head and back striking the road. He could not continue to work, so rested for a short while. His pain did not resolve so he attended the emergency department of the hospital. The hospital performed blood tests, provided him with a medical certificate and discharged him into the care of Dr Awais.
[14] Application to Resolve a Dispute (ARD), pp 220–221.
Mr Abdul said he consulted Dr Awais the following day. Dr Awais organised CT scans and MRI scans of his neck and back and a CT scan of the brain. Dr Awais referred Mr Abdul to Dr Mohammed Dowla, Neurologist and later Dr Teychenne, also a Neurologist.
Mr Abdul said that he developed a psychological condition and Dr Awais referred him to Dr Nadeen Anwar, Psychiatrist. Mr Abdul said that he was also referred to a Pain Specialist, but as liability had been declined by the insurer, he was required to pay for the consultation himself.
Mr Abdul described the ongoing difficulties he experienced in respect of his back, neck, right shoulder and psychological problems. He described a “constant stabbing pain on my head and in my neck, back, both shoulders, right and and fingers.”[15] He said his right fingers were swollen, he experienced jerking of both shoulders and had swollen feet.
[15] Mr Abdul’s Statement, [12(m)].
He stated that prior to his injury, he was fit and well and enjoyed good health.
Mr Abdul also provided a supplementary statement dated 16 December 2017[16] which was filed in the Commission under cover of an Application to Admit Late Documents (AALD) dated 17 December 2017.
[16] AALD 17 December 2017, p 15.
In that statement, he provided details of his pre-injury work history. It is not disputed that the description of his employment history was in relatively manual work.
He confirmed he had not returned to any work since his injury on 1 September 2016.
Mr Abdul was also cross examined in the arbitration proceedings about his work history, but again as nothing turns on that evidence it will not be repeated here.
The medical evidence of the treatment providers
The Nepean Hospital Discharge Summary and GP referral recorded that Mr Abdul had attended the Emergency Department with “multiple injuries”. The diagnosis was recorded as “Falls”, “Headache”, “Soft tissue injury” and “Trauma”.[17]
[17] ARD, p 6.
The Summary relevantly noted:
“60 yo gentleman presents after fall
Works at Nepean Hospital in waste management role
Drives heavy truck
As was climbing out of truck states he tripped over bar
Fell onto coccyx, now complaining of lower back pain
Fell onto head as well
Denies LOC
Describes headache
…
Appears to be simple mechanical fall”
The clinical notes of Dr Awais were in evidence.[18] The consultations recorded commenced on 19 December 2014 and continued to 1 March 2017. Relevantly, there was no history of prior symptoms and Mr Abdul had continued to complain of symptoms resulting from the injuries throughout the period after the injury.
[18] ARD, pp 65-93.
Dr Awais also provided two medical reports. The first report was handwritten, directed to the appellant and dated 12 September 2016.[19] Dr Awais confirmed that Mr Abdul had been his patient since December 2014. He provided a diagnosis of Mr Abdul’s conditions, which he described as “concussion injury, whiplash type injury to C-spine with disc bulge C5/C6, whiplash injury and direct injury to L spine”.
[19] ARD, pp 13–15.
Dr Awais assessed a recovery period of 12–18 weeks and that in between one and three weeks, Mr Abdul would “perhaps” be able to return to restricted duties.
In a more comprehensive report dated 27 February 2017,[20] Dr Awais provided a detailed description of the injury as reported to him. The doctor confirmed that Mr Abdul suffered whiplash injury to his neck, whiplash and direct injury to the low back areas, a “pattern of concussion injury”, dizziness, headaches, difficulty swallowing, shaking of the arms, persistent confusion and amnesia and major depression.
[20] ARD, pp 53–56.
Dr Awais advised the need for further treatment including regular review from a neurologist, psychological treatment, physiotherapy, hydrotherapy and pain management. He said that because liability had been denied by the insurer, treatment had been sub-optimal.
Dr Awais confirmed that all of the symptoms were due to the injury, which was clearly work related. He said there were no other causes for the injury. His view was that Mr Abdul was still unfit for work.
Dr Awais was critical of the opinion of Dr Grant Walker, neurologist, qualified by the appellant.
Dr Awais also provided WorkCover medical certificates for the period from 1 September 2016 to 14 December 2017, certifying that Mr Abdul had no capacity for employment over that period.
Mr Abdul’s initial treating neurologist, Dr Dowla, provided three reports. Following the first consultation, Dr Dowla forwarded a report dated 19 September 2016 to Dr Awais.[21] Dr Dowla took a history of the fall on 1 September 2016. He reported that Mr Abdul hit his head on concrete but did not lose consciousness. Dr Dowla recorded symptoms of the development of a headache which radiated to the vertex. Mr Abdul complained of difficulty swallowing and sleeping at night. Dr Dowla recorded that Mr Abdul’s “pre-existing lower back pain has also got worse”.
[21] ARD, p 19.
Dr Dowla’s clinical examination revealed no abnormality. He diagnosed a possible tension headache but suggested Mr Abdul return for review and bring with him his CT scan of the brain.
Dr Dowla reviewed Mr Abdul on 27 September 2016 and provided a report of the same date directed to Dr Awais.[22] He noted a slight improvement in the symptoms of headache after taking Endep medication, and advised an increase in that medication for a period of one month.
[22] ARD, p 20.
Dr Dowla commented that an MRI scan of the brain disclosed “no intracranial abnormality”. That appears to be a typographical error, as Dr Dowla thought that the MRI indicated a possible ischaemic gliosis. Dr Dowla suggested a review by him in three months.
Mr Abdul returned for review on 10 October 2016. On that date Dr Dowla recorded a marginal improvement in the headache and recommended a further increase in Endep. On this occasion Dr Dowla reported that the MRI scan dated 16 September 2016 showed increased signal in the deep white matter, which was likely to represent ischaemic gliosis. Dr Dowla reviewed an MRI scan of the cervical spine, which disclosed broad based disc protrusions at C5/6 and C6/7 levels, the presence of osteophytic changes with minimal effacement. Dr Dowla also reviewed an MRI scan of the lumbar spine, which showed a disc protrusion at L4/5 level and narrowing of the lateral recess of L5.
Dr Dowla recommended careful observation of Mr Abdul’s progress and further review in two months.
Mr Abdul was then referred to Dr Paul Teychenne, neurologist, who provided numerous reports directed to both Dr Awais and the insurer between 21 October 2016 and 1 December 2016.[23]
[23] ARD, pp 24–43.
At the initial consultation, Dr Teychenne recorded the history of injury, which Mr Abdul reported to be a fall on to his lumbar spine and then the back of his head, without loss of consciousness. Within two hours, Mr Abdul noticed a heavy pain over his lumbar and cervical spine. After about two days Mr Abdul developed vertigo and a hot pain in the right leg. About a week later, the pain progressed to a sharp stabbing pain to the occipital region, pain in the right shoulder, shooting pain in the head and the left arm was jerking. Two weeks after the injury, Mr Abdul noticed numbness in his left and right fifth fingers and tightness in his neck.
Dr Teychenne noted the radiological evidence and suggested a full dermatone/myotome examination.
At the next consultation, Dr Teychenne carried out nerve conduction studies of the upper limbs and a Brainstem Invoked Response. He advised neurophysiologic assessment and opined that the clinical evidence was consistent with an incomplete cervical cord lesion.
At a subsequent examination, Dr Teychenne reviewed the investigations and concluded that the clinical evidence confirmed an incomplete cervical cord lesion.[24]
[24] Report dated 2 November 2016; ARD, pp 32–34.
Dr Teychenne confirmed that probable diagnosis in the ensuing further reviews and assessments and again in a report directed to Mr Abdul’s legal representative dated 24 July 2017.[25] In that report Dr Teychenne provided an opinion on the restrictions that should be imposed in any return to work. He also expressed criticism of the opinion of Dr Walker.
[25] ARD, pp 46–47.
Mr Abdul also relied on a report from Dr S Raj Sundaraj, Associate Professor in Pain Management. Dr Sundaraj reviewed Mr Abdul at the request of Dr Awais, and provided a report to Dr Awais on 1 May 2017. Dr Sundaraj took a history of the injury and subsequent treatment. Following an examination, Dr Sundaraj formed the view that although he was uncertain of the causal reason for the head and neck pain, it was more likely to be arising from the upper cervical spine. Dr Sundaraj also thought that Mr Abdul may be suffering from a rotator cuff muscle impingement or tear. Dr Sundaraj requested a bone scan of the entire spine and right shoulder, and an ultrasound of the right shoulder.
Dr Nadeem Anwar, psychiatrist, provided a report dated 22 December 2016. Mr Abdul was referred to Dr Anwar by Dr Awais because of the onset of depression and anxiety following the work injury on 1 September 2016. Dr Anwar diagnosed a depressive episode initiated by the work injury and the impact of pain on his daily functioning. Dr Anwar recommended a treatment regime which included referral for pain management and a change in medication, with a review in two to four months.
Dr Anwar provided a second report dated 3 October 2017,[26] on that occasion directed to Mr Abdul’s legal representatives following a further review of Mr Abdul on 22 September 2017. Dr Anwar diagnosed a moderate to severe depression triggered by the work injury on 1 September 2016.
[26] ARD, pp 59–64.
The doctor added that ongoing pain and the impact of that pain on Mr Abdul’s functioning and sleep had hindered his recovery from the major depressive symptoms. Dr Anwar formed the view that the prognosis was poor, and that Mr Abdul was not fit for any employment at that stage.
Mr Abdul’s medico-legal expert
Mr Abdul qualified Dr Matthew M Giblin, orthopaedic surgeon, to provide an opinion. Dr Giblin provided a report dated 28 March 2017. Dr Giblin performed an examination and reviewed the radiological evidence. Despite not recording a history of injury to the back, Dr Giblin diagnosed aggravation of the underlying degenerative change in the cervical and lumbar spine, and right rotator disease. Dr Giblin noted Dr Teychenne’s diagnosis of an incomplete cervical cord lesion.
Dr Giblin considered the injuries sustained were “appropriate” and the “workplace injury was a substantial contributing factor to his current injuries and disabilities.”[27] He said that Mr Abdul remained unfit for work involving repetitive bending, heavy lifting and repetitive, heavy use of his right arm.
[27] ARD, p 4.
The appellant’s medical evidence
The appellant qualified Dr Grant Walker, neurologist and D Glen Smith, psychiatrist, to provide opinions on its behalf.
Dr Walker provided two reports. The first report was dated 15 December 2016.[28] Dr Walker reviewed the clinical history contained in the Nepean Hospital notes and Dr Awais’ clinical notes. Dr Walker also reviewed the radiological investigations of the brain and spine and agreed with the reports, adding that the abnormalities were minor and non-acute.
[28] Reply, pp 1–7.
Dr Walker also commented that nerve conduction studies and somatosensory evoked potentials of the upper and lower limbs arranged by Dr Teychenne were of no value in assessing nerve root pathology. He further said that the visual evoked responses and the brain stem auditory evoked responses were of no value in assessing concussion.
Dr Walker described Mr Abdul’s injury as a “minor fall”[29] and that the radiology did not suggest a significant disability. He said that there was radiological evidence of pre-existing spinal degenerative disease and that the accident could have been a precipitating event.
[29] Reply, p 3.
Dr Walker opined that Mr Abdul’s employment was not a contributing factor to his condition. The task Mr Abdul was doing is something that many people do on a daily basis and was precipitated by Mr Abdul’s own clumsiness.
Dr Walker expressed the view that Mr Abdul’s injury would have resolved spontaneously within a few days or weeks, and his ongoing symptoms were referable to the spinal degenerative disease. Dr Walker found no physical evidence that Mr Abdul was unfit for work.
Dr Walker provided a second report dated 21 August 2017.[30] Dr Walker did not re-examine Mr Abdul for the purposes of that report. Dr Walker confirmed his earlier opinion on causation and diagnosis. Dr Walker criticised the opinion of Dr Awais in respect of the diagnoses of “whiplash” and concussion and observed there was no evidence of brain injury whatsoever. Dr Walker said that the alleged major depression, persistent confusion, shaking of the arms, dizziness and difficulty swallowing were not present when he examined Mr Abdul in December 2016.
[30] Reply, pp 8–11.
Dr Walker found Dr Teychenne’s opinion that Mr Abdul suffered from an incomplete spinal cord lesion “astonishing”.[31] He contended that such a concept was unacceptable and contrary to conventional neurological views. Dr Walker thought it reasonable to engage an independent neurologist who is currently practising to review Dr Teychenne’s reports and opinions.
[31] Reply, p 9.
Dr Walker observed that since the examination in December 2016, Mr Abdul had developed significant depression and a painful shoulder (which was a new pain and not yet investigated), and Mr Abdul would be unlikely to return to paid employment. Dr Walker confirmed his view that the injury received on 1 September 2016 would have long since resolved.
Dr Smith reviewed Mr Abdul for the purposes of assessing Mr Abdul’s psychological condition and the relationship between the condition and the injury on 1 September 2016. In his report dated 18 November 2017,[32] Dr Smith took a consistent history of the injury and noted subsequent treatment provided by a neurologist and a pain specialist, as well as treatment for anxiety and depression from Dr Anwar. Following a mental state examination and a review of the medical reports addressing Mr Abdul’s physical and psychological symptoms, Dr Smith diagnosed a Somatic Symptom Disorder with Predominant Pain, Persistent and Severe. The basis of the diagnosis was the significant disruption of Mr Abdul’s life by the somatic preoccupations, the disproportionate thoughts about the seriousness of his symptoms, together with persistent high level of anxiety.
[32] AALD dated 12 December 2017, pp 1–15.
Dr Smith considered that there were some inconsistencies in Mr Abdul’s presentation, that there was no significant evidence of loss of concentration and that Mr Abdul required ongoing psychiatric intervention and psychological treatment from an expert in pain and somatic symptom disorders.
Dr Smith thought that the relationship between Mr Abdul’s psychological condition and the injury depended on whether the persistent pain and physical symptoms were as a result of the accident. Dr Smith was of the view that, from a psychological perspective, Mr Abdul would benefit from a return to work, but that his amplified response to somatic stimuli would make that difficult. Dr Smith said that it was unclear if the somatic symptoms related to the work injury and his sensitisation to somatic stimuli might be unrelated.
The documentary evidence
An undated injury notification form,[33] apparently prepared but not signed by Kelly Hunt, an employee of the appellant, contained scant details of the incident. The document recorded soft tissue injury from trauma or “unknown mechanisms” involving the “Head – unspecified locations” and “falls from a height.”[34]
[33] ARD, pp 177–179.
[34] ARD, p 178.
The appellant’s AIMS incident report dated 1 September 2016[35] recorded that Mr Adbul had fallen from a height while he was removing a 660 litre bin from the back of a truck. The incident was witnessed by Mr Colin Beadman, Waste Supervisor, who said Mr Abdul indicated initially that he was “okay” but Mr Beadman found him later sitting in a shed. Mr Abdul complained of feeling dizzy and proceeded to the emergency department of the hospital. The report recorded injuries to the head and low back.
[35] Reply, pp 12–13.
The appellant’s pre-injury average weekly earnings calculation sheet was in evidence.[36] That document indicated that Mr Abdul’s pre-injury average weekly earnings during the first 52 weeks was $900.42 and thereafter reduced to the ordinary weekly earnings figure of $884.69.
[36] Reply, p 14.
The insurer’s list of payments also indicated that Mr Abdul had been paid weekly compensation at the rate of $855.24 per week from 1 September 2016 to 30 November 2016 pursuant to s 36(2) of the 1987 Act, and thereafter at the rate of $720.34 per week, expressed to be pursuant to ss 37(1) or 37(3) of the 1987 Act. Payments were made until 19 January 2017, when payments ceased because liability was declined.
The remaining documentary evidence is not relevant to the issues on appeal and will not be recorded here.
THE ARBITRATOR’S REASONS
The Statement of Reasons and COD issued on 12 January 2018
In his Statement of Reasons,[37] the Arbitrator identified the issues requiring determination as:
“(a) Did Mr Abdul suffer injury in the course of his employment to his neck, back, right shoulder as well as a concussion injury and secondary psychological injury?
(b) In respect of any injury (other than a disease injury) found to have been suffered in the course of employment, was employment a substantial contributing factor to that injury?
(c) If so, to what extent did the applicant have a current work capacity from and after 1 September 2016?
(d) What is the extent of any weekly payment to which the applicant may be entitled pursuant to section 36 and section 37 of the Workers Compensation Act 1987 (the 1987 Act)?”[38]
[37] Habib Samsullah Abdul v State of New South Wales [2018] (12 January 2018) NSWWCC 10 (Reasons dated 12 January 2018).
[38] Reasons dated 12 January 2018, [8].
The Arbitrator recorded that leave was granted for Mr Abdul to amend the claim for weekly payments to commence from 1 September 2016 (originally claimed from 4 January 2017). The Arbitrator provided a summary of the oral evidence given by Mr Abdul at the arbitration.
The Arbitrator proceeded to address the issues by consideration of each of the issues before him, taking into account the submissions made and the relevant evidence.
Injury
The Arbitrator considered Mr Abdul’s statement evidence as to how the injury occurred. He further considered the injury notification form, the AIMS incident report and the consistent history recorded by Dr Smith and Dr Walker, qualified by the appellant. The Arbitrator reviewed the history of complaints and symptoms provided to both the Emergency Department at Nepean Hospital and to Dr Awais. He also reviewed the radiological investigations and the treatment offered and opinions provided by Dr Dowla, Dr Sundaraj, Dr Anwar and Dr Teychenne. The Arbitrator further considered the opinions of each of the medico-legal experts, Dr Giblin, Dr Walker and Dr Smith.
The Arbitrator noted that the earliest report of right shoulder pain was recorded in March 2017, and that although there were earlier shoulder complaints those complaints were more likely referable to symptoms emanating from the neck.
The Arbitrator accepted the opinion of Dr Giblin (which was consistent with that of Dr Walker) that Mr Abdul aggravated previously asymptomatic degenerative changes in the cervical and lumbar spine. He observed that it was therefore necessary for Mr Abdul to establish that his employment was the main contributing factor to the injury.
The Arbitrator did not accept the opinion of Dr Walker that Mr Abdul could have suffered a similar injury anywhere and at any time. The Arbitrator said the tasks Mr Abdul was performing were peculiar to his employment and there was no evidence that Mr Abdul had any pre-existing health problems that caused him to lose balance and fall to the ground. Those actions Mr Abdul was undertaking were the main contributing factor to the injury.
The Arbitrator accepted that there were no previous complaints of symptoms in the neck or back and that Mr Abdul had been performing his full active work duties up until the incident. The Arbitrator accepted that the fall precipitated head, neck and low back symptoms, causing injury and that employment was a main contributing factor to the injury.
The Arbitrator observed that Dr Walker provided no basis for his opinion that the effects of the injury would have resolved or the aggravation had ceased. The Arbitrator accepted that Mr Abdul’s symptoms persisted. In the context of Mr Abdul’s preoccupation with his symptoms and the belated record of complaints in the right shoulder, the Arbitrator concluded that he was not satisfied that Mr Abdul suffered injury to his right shoulder in the fall.
Noting that the radiological evidence of the brain and head disclosed no abnormalities, the Arbitrator did not accept the opinion of Dr Awais with respect to the allegation of concussion injury to the head.
The Arbitrator accepted the diagnosis of somatic symptom disorder proffered by Dr Smith as the more likely diagnosis given the “extensive evidence of preoccupation of injury, fears of catastrophic outcome and increasing levels of pain despite a lower level of activity.”[39] The Arbitrator reiterated that the proviso put in place by Dr Smith that the physical symptoms and persistent pain resulted from the injury had been made out, so that the psychological condition was consequential to the injury.
[39] Reasons dated 12 January 2018, [91].
Substantial contributing factor
As the injury was established to be an aggravation of pre-existing degenerative disease pursuant to s 4(b)(ii) of the 1987 Act, the Arbitrator did not apply s 9A of the 1987 Act. He reasoned that the test under s 4(b)(ii) required the employment to be the main contributing factor to the aggravation and s 9A has no role to play. The injury was not a personal injury pursuant to s 4(a) of the 1987 Act. Further, s 9A had no application to the secondary psychological condition.
Incapacity
The Arbitrator determined that Mr Abdul had no capacity for work. In arriving at that determination, he considered the following medical evidence:
(a) the WorkCover medical certificates provided by Dr Awais, who had extensive contact with Mr Abdul and asserted Mr Abdul had no capacity for employment;
(b) the opinion of Dr Walker that a return to work was unlikely;
(c) the significant physical restrictions that Dr Teychenne considered appropriate, and
(d) Dr Anwar’s opinion that Mr Abdul was unfit for any employment.
The Arbitrator referred to s 32A of the 1987 Act, which defined “no current work capacity” and the factors which must be regarded (and disregarded). He considered Mr Abdul’s mental state and its impact on his capacity together with the physical restrictions. Additionally, Mr Abdul’s past work experience was limited to manual or semi-skilled work and he had limited education.
Entitlement to weekly payments
The Arbitrator observed that as Mr Abdul had no work capacity, he was entitled to payments pursuant to s 36(1) of the 1987 Act in respect of the period from 1 September 2016 to 1 December 2016 (95% of the average weekly earnings) and thereafter pursuant to s 37(1) of the 1987 Act (80% of the average weekly earnings).
The Arbitrator noted that the parties agreed the pre-injury average weekly earnings were $900.42 and that Mr Abdul had been paid weekly payments up until 19 January 2017. The Arbitrator identified that the issue in respect of the payments made related to the application of s 82A of the 1987 Act. That section provided for indexation of weekly payments by the prescribed indexation rate each April and October. The Arbitrator identified the relevant index numbers for each review date up to and including 1 October 2017. He calculated the indexed amount for the period 1 October 2016 to 1 December 2016 (s 36(1)), each indexed amount from 2 December 2016 to 31 August 2017 (s 37(1)), and thereafter the indexed amount of Mr Abdul’s ordinary weekly earnings (applying the requirement to exclude overtime and allowances after the first 52 weeks (s 44C(1) of the 1987 Act)).
As the indexed amount of weekly payments never exceeded Mr Abdul’s ordinary weekly earnings, the Arbitrator said that s 82A(3) would not operate to cap the weekly payments earnings.
The Arbitrator reproduced Mr Abdul’s weekly claim for weekly payments as set out in a wages schedule handed up at the arbitration. The claim was calculated as follows:
Period
PIAWE
Ordinary Earnings
S 36/37
Weekly payment
Index no.
Weeks
1/09/2016
30/09/2016
900.42
884.69
95%
855.40
NA
1/10/2016
1/12/2016
903.75
887.96
95%
858.56
1.0037
13.00
2/12/2016
31/03/2017
903.75
887.96
80%
723.00
NA
1/04/2017
31/08/2017
916.94
900.92
80%
733.56
1.0146
52.00
1/09/2017
30/09/2017
900.92
900.92
80%
720.74
NA
1/10/2017
date
907.41
907.41
80%
725.93
1.0072
Applying s 82A, the Arbitrator considered that the calculations accorded with that section and the reasoning was sound. He noted, however, that the issue had only arisen at the arbitration and on that basis, the appellant ought to be given leave to file submissions as to how the provision for indexation in s 82A should be applied.
In the Certificate of Determination dated 12 January 2018 (as corrected by the Certificate of Determination dated 21 March 2018), the Arbitrator made the following determinations:
“1. The Application to Resolve a Dispute is amended:
(a)to correct the title of the respondent to ‘State of New South Wales (Nepean Blue Mountains Local Health District)’;
(b)to remove the claim for particular treatment expenses and to add in lieu a claim for a general order for payment of treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act);
(c)to claim weekly payments of compensation pursuant to section 36 and section 37 of the 1987 Act from 1 September 2016 with credit for payments made;
2. Award for the respondent in respect of the claims of injury by way of concussion and injury to the right shoulder.
3. The Commission finds that the applicant suffered a disease injury as defined in section 4(b)(ii) of the 1987 Act in respect of the neck and lower back in the course of his employment with the respondent on one September 2016 and thereafter suffered the onset of a consequential psychological condition and the Commission further determines:
(a)the applicant had no current work capacity from and after 1 September 2016 as the result of injury;
(b)the applicant's pre-injury average weekly earnings as at 1 September 2016 were $900.42;
(c)the applicant's ordinary weekly earnings were $884.69 per week as at 1 September 2016.
(d)the relevant index numbers proclaimed pursuant to section 82A(4) were;
(i)1/10/16 - 1.0037;
(ii)1/04/17 - 1.0146;
(iii)1/10/17 - 1.0072.
(e)the applicant's claim for weekly payments in the period 1 September 2016 to 30 September 2016 has been satisfied by payments already made pursuant to section 36(1) of the 1987 Act and the applicant has no entitlement to further weekly payments in respect of that period.
4. The respondent is to make weekly payments pursuant to section 36, section 37 and section 82A of the 1987 Act from 1 October 2016 to date and continuing in accordance with the findings of the Commission
5. The respondent is to file and serve written submissions within 14 days addressing the quantum of such weekly payments having regard to the findings of the Commission set out above and, if required, further determination as to quantum of weekly payments will then be made having regard to those submissions.
6. The respondent is to pay the applicant's reasonably necessary treatment expenses pursuant to section 60 of the 1987 Act in respect of injury to the neck, lower back and consequential psychological condition.”
The Statement of Reasons and COD issued on 21 March 2018
In accordance with a Direction made by the Arbitrator, both parties filed written submissions as to the operation of s 82A(1) and 82A(3) of the 1987 Act.
In his Statement of Reasons for the COD dated 21 March 2018,[40] the Arbitrator considered that the previous provisional observations he made about the submissions and in respect of the indexation of the pre-injury average weekly earnings did not accurately reflect the effect of s 82A(3).
[40] Habib Samsullah Abdul v State of New South Wales (5099/17, 21 March 2018) (Reasons dated 21 March 2018).
After receipt of the written submissions, the Arbitrator said that his understanding of Mr Abdul’s submissions was that:
(a) section 82A(3) required a comparison between the indexed pre-injury average weekly earnings and the amount Mr Abdul would have earned by ordinary earnings as at 1 April and 1 October of each year, as though Mr Abdul had been working on those days;
(b) the subsection operates only where the indexed earnings exceed the ordinary earnings by reason of the index alone;
(c) the indexation should be applied within the first 52 weeks because the difference between the pre-injury average weekly earnings and the ordinary weekly earnings was attributable to shift and overtime allowances. The larger amount was attributable to the provisions of s 44C(1)(a) of the 1987 Act, and
(d) the onus was on the employer to provide evidence of the post injury earnings as at the review dates if it sought to establish that the indexed pre-injury average weekly earnings exceeded the ordinary earnings solely because of indexation.
The Arbitrator provided a summary of what he understood to be the employer’s submissions as follows:
(a) it agreed that s 82A(3) required a comparison between the pre-injury average weekly earnings as indexed and the ordinary weekly earnings;
(b) the “ordinary weekly earnings” are as defined in s 44E of the 1987 Act;
(c) the pre-injury average weekly earnings exceeded the ordinary earnings and if indexed, would result in a figure of more than 100% of the ordinary earnings;
(d) on that basis, there should be no indexed increase until 1 October 2017, and
(e) on the review date of 1 October 2017, the index number for that review was 1.0072 which when applied to the ordinary weekly earnings ($884.69), the weekly payment would be 80% of the indexed amount, that is $712.85. The variation resulted from the 2.5% increase that would have been received had Mr Abdul continued to work in the same position without injury.
The Arbitrator accepted the employer’s submissions in relation to the calculation up to 1 October 2017. He did not accept that the indexation was to be applied to the ordinary weekly earnings. He formed the view that a worker is entitled to a variation in his or her weekly compensation payment if the worker would have received an increase but for the injury. The Arbitrator said the variation was limited to the extent to which it does not increase the weekly rate beyond ordinary earnings at the new increased rate.
The Arbitrator rejected the submission that the onus rests with the employer to adduce evidence as to the probable earnings but for injury. He had convened a telephone conference in order to address the issue. He noted that at the telephone conference, the parties reached agreement that the ordinary weekly earnings were varied on 1 July 2017 when the probable earnings were increased by 2.5% to $906.81.
The Arbitrator determined that he was satisfied that indexation of the pre-injury average weekly earnings in October 2016 and April 2017 produced a figure higher than 100% of the ordinary earnings and no variation could be applied for those periods.
The Arbitrator further noted a submission made by the employer that the variation to account for the increase in earnings on 1 July 2017 should be made by multiplying the ordinary earnings of $884.69 by the index number of 1.0072 and by 80% (s 37(1)), producing a figure of $712.85.
The Arbitrator did not accept that proposition. He reasoned that the phrase “pre-injury average weekly earnings” yields different figures depending upon whether or not the entitlements fall within the first 52 weeks. Both figures fall within the definition of “pre-injury average weekly earnings” pursuant to s 44C. The Arbitrator observed that s 82A(1) referred only to “pre-injury average weekly earnings” and that the terms “average weekly earnings” and “ordinary earnings” are not the same. Section 82A provides only for the pre-injury average weekly earnings to be indexed, not the ordinary earnings.
As a result, the Arbitrator found that the ordinary earnings ($884.69) remained for the purpose of s 82A(3) but that the subsection did not require the indexation factors in October 2016 and April 2016 to be ignored when calculating the pre-injury average weekly earnings in October 2017. He said that the calculations of the indexed pre-injury average weekly earnings in October 2016 and April 2017 are based on the definition of pre-injury average weekly earnings in s 44C(a) and in October 2017 the calculation is based on the definition of pre-injury earnings in s 44C(b).
In his calculations of the indexation of the pre-injury average weekly earnings for October 2016 and April 2017, the Arbitrator applied the indexation number to the ordinary earnings of $884.69. The figure arrived at for 1 October 2016 became $887.96, and when indexed in April 2017 became $900.92. The Arbitrator then applied the indexation number for 1 October 2017 to $900.92 in order to calculate the variation for October 2017, which resulted in a figure of $907.41.
The Arbitrator then returned to a consideration of s 82A(3), which provided that “the worker’s ordinary earnings are to be expressed as a weekly sum to which the worker would be entitled if he or she were employed in the same position … as he or she was employed in immediately before the injury”. The Arbitrator reasoned that the plain meaning of the words of the section require a consideration of the actual amount the worker would have received had he remained uninjured and in that employment. The Arbitrator noted the parties’ agreement that there was a 2.5% increase in July 2017 and that percentage increased the ordinary earnings to $906.81. As the pre-injury average weekly earnings were indexed to $907.41 on 1 October 2017, which exceeded the ordinary weekly earnings of $906.81, Mr Abdul’s pre-injury average weekly earnings from 1 October 2017 were capped at $906.81. That resulted in weekly payments of $725.45 per week pursuant to the formula provided in s 37(1) of the 1987 Act.
The Arbitrator issued a Certificate of Determination dated 21 March 2018 as follows:
“The Certificate of Determination dated 12 January 2018 was issued in these proceedings with inappropriate numbering of the paragraphs. That determination is confirmed with appropriate numbering as follows:
1. The Application to Resolve a Dispute is amended:
(a)To correct the title of the respondent to ‘State of New South Wales (Nepean Blue Mountains Local Health District)’.
(b)To remove the claim for particular treatment expenses and to add in lieu a claim for a general order for payment of treatment expenses pursuant to section 60 of the Workers Compensation Act 1987.
(c)To claim weekly payments of compensation pursuant to section 36 and section 37 of the Workers Compensation Act 1987 from 1 September 2016 with credit for payments made.
2. Award for the respondent in respect of the claims of injury by way of concussion and injury to the right shoulder.
3. The Commission finds that the applicant suffered a disease injury as defined in section 4(b)(ii) of the Workers Compensation Act 1987 in respect of the neck and lower back in the course of his employment with the respondent on 1 September 2016 and thereafter suffered the onset of a consequential psychological condition and the Commission further determines:
(a)the applicant had no current work capacity from and after 1 September 2016 as the result of injury;
(b)the applicant's pre-injury average weekly earnings as at 1 September 2016 were $900.42;
(c)the applicant's ordinary weekly earnings were $884.69 per week as at 1 September 2016.
(d)the relevant index numbers proclaimed pursuant to section 82A(4) were;
(i)1/10/16 - 1.0037
(ii)1/04/17 - 1.0146
(iii)1/10/17 - 1.0072.
(e)The applicant's claim for weekly payments in the period 1 September 2016 to 30 September 2016 has been satisfied by payments already made pursuant to section 36(1) of the Workers Compensation Act 1987 and the applicant has no entitlement to further weekly payments in respect of that period.
4. The respondent is to make weekly payments pursuant to section 36, section 37 and section 82A of the Workers Compensation Act 1987 from 1 October 2016 to date and continuing in accordance with the findings of the Commission.
5. The respondent is to file and serve written submissions within 14 days addressing the quantum of such weekly payments having regard to the findings of the Commission set out above and, if required, further determination as to quantum of weekly payments will then be made having regard to those submissions.
6. The respondent is to pay the applicant's reasonably necessary treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 in respect of injury to the neck, lower back and consequential psychological condition.
Following consideration of written submissions referred to in paragraph 5 and a further telephone conference, the determination of the Commission with respect to the remaining issue is as follows:
7. Pursuant to paragraph 5 of the determination on 12 January 2018, the weekly payments referred to in paragraph 4 are determined to be:
(a)the sum of $855.40 per week from 1 October 2016 to 1 December 2016 pursuant to section 36(1)(a) of the Workers Compensation Act 1987;
(b)the sum of $720.34 per week from 2 December 2016 to 31 August 2017 pursuant to section 37(1)(a) of the Workers Compensation Act 1987;
(c)the sum of $707.75 per week from 1 September 2017 to 30 September 2017 pursuant to section 37(1)(a) of the Workers Compensation Act 1987, and
(d)the sum of $725.45 per week from 1 October 2017 to date and continuing pursuant to section 37(1)(a) and section 82A of the Workers Compensation Act 1987.
8. The respondent is to have credit for payments of weekly compensation made in respect of any of the above periods.”
On 5 April 2018, the appellant lodged an application to the Arbitrator to reconsider his determination and statement of reasons dated 21 March 2018. The basis of the application was that the Arbitrator’s recital of its submissions did not actually reflect those submissions. The appellant said that at all times, its submission was that only the pre-injury average weekly earnings were to be indexed, and that it did not agree that the ordinary earnings should be varied. The appellant further submitted that the submission that there should be no variation applied until 1 October 2017 was an alternate submission made in the event that its first submission was not accepted.
The Arbitrator declined to reconsider his reasons and determination. In his reasons, he acknowledged that his understanding of the appellant’s submissions was as stated in the letter requesting the reconsideration. He issued a further Certificate of Determination.
The Certificate of Determination issued on 14 May 2018 records:
“1. The request by the respondent for reconsideration of the determination dated 21 March 2018 in this matter is declined.
2. By consent of the parties and at the request of the respondent it is appropriate that the statement of reasons in respect of that determination be varied by:
(a)deleting from paragraph 10 words ‘The variation was triggered by the 2.5% pay increase that would have been received by Mr Abdul if he continued to work in the same position without the injury’ and
(b)deleting paragraph 21 and inserting in lieu;
‘The respondent submitted that, as at 1 October 2017, the PIAWE be varied by reference to the index number and the weekly payment varied. [(($884.69 x 1.0072) x 80%) = $712.85].’”
GROUNDS OF APPEAL
The appellant brings the following grounds of appeal:
(a) Ground 1: The Arbitrator erred in law by finding the worker suffered a disease injury (a consequential psychological condition) pursuant to s 4(b)(ii) of the 1987 Act, having failed to consider, apply or satisfy the conditions set out in s 4(b)(ii);
(b) Ground 2: The Arbitrator erred in law by finding that the worker suffered a disease injury pursuant to s 4(b)(ii) of the 1987 Act, being a consequential psychological injury, where the medical opinion relied on did not support such a finding and there was no other evidence sufficient to support such a finding;
(c) Ground 3: The Arbitrator erred in law by finding that the worker suffered a disease injury pursuant to s 4(b)(ii) of the 1987 Act in respect of the neck and low back on 1 September 2016 and thereafter suffered the onset of a consequential psychological condition and failed to consider, apply or satisfy s 9A of the 1987 Act, and
(d) Ground 4: The Arbitrator erred in law in applying retrospectively from 1 October 2017, Consumer Price Index increases pursuant to s 82A of the 1987 Act to the worker’s pre-injury average weekly earnings for 1 October 2016 and 1 April 2017.
LEGISLATION
Section 4 of the 1987 Act relevantly defines injury as:
“Definition of ‘injury’
In this Act:
injury
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
…”
Section 9A of the 1987 Act provides:
“No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note: In the case of a disease injury, the worker's employment must be the main contributing factor. See section 4.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment,
(e) the worker's state of health before the injury and the existence of any hereditary risks,
(f) the worker's lifestyle and his or her activities outside the workplace.
(3) A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment,
(b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
Section 36(1) of the 1987 Act makes provision for the calculation of weekly payment during the first 13 weeks of work where the worker has no capacity for work, as follows:
“Weekly payments in first entitlement period (first 13 weeks)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of:
(a) (AWE × 95%) − D, or
(b) MAX − D,
whichever is the lesser.”
After the first 13 weeks, a worker who has no capacity for work is entitled to weekly payments in accordance with s 37(1) of the 1987 Act, that is:
“Weekly payments in second entitlement period (weeks 14-130)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of:
(a) (AWE × 80%) − D, or
(b) MAX − D,
whichever is the lesser.”
A worker’s pre-injury average weekly earnings are defined in s 44C of the 1987 Act. That section relevantly provides:
“Definition--pre-injury average weekly earnings
(1) In this Division, pre-injury average weekly earnings, in respect of a relevant period in relation to a worker, means the sum of:
(a) the average of the worker's ordinary earnings during the relevant period (excluding any week during which the worker did not actually work and was not on paid leave) expressed as a weekly sum, and
(b) any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable).
…
(5) An overtime and shift allowance payment is permitted to be included in the calculation of pre-injury average weekly earnings (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable) …”
Section 44D of the 1987 Act, as it applies to Mr Abdul, defines the “relevant period” as follows:
“Definitions applying to pre-injury average weekly earnings– relevant period
(1) Subject to this section, a reference to the relevant period in relation to pre-injury average weekly earnings of a worker is a reference to:
(a) in the case of a worker who has been continuously employed by the same employer for the period of 52 weeks immediately before the injury, that period of 52 weeks, or
(b) in the case of a worker who has been continuously employed by the same employer for less than 52 weeks immediately before the injury, the period of continuous employment by that employer.”
The definition of “ordinary weekly earnings” of a worker is set out in s 44E of the 1987 Act as:
“Definitions applying to pre-injury average weekly earnings--ordinary earnings
(1) Subject to this section, in relation to pre-injury average weekly earnings, the ordinary earnings of a worker in relation to a week during the relevant period are:
(a) if the worker's base rate of pay is calculated on the basis of ordinary hours worked, the sum of the following amounts:
(i) the worker's earnings calculated at that rate for ordinary hours in that week during which the worker worked or was on paid leave,
(ii) amounts paid or payable as piece rates or commissions in respect of that week,
(iii) the monetary value of non-pecuniary benefits provided in respect of that week, or
(b) in any other case, the sum of the following amounts:
(i) the actual earnings paid or payable to the worker in respect of that week,
(ii) amounts paid or payable as piece rates or commissions in respect of that week,
(iii) the monetary value of non-pecuniary benefits provided in respect of that week.
(2) A reference to ordinary earnings does not include a reference to any employer superannuation contribution.”
Section 82A of the 1987 Act provides:
“82A Indexation--weekly payments
(1) The amount of a weekly payment to a worker under Division 2 in respect of an injury is to be varied on each review date after the day on which the worker became entitled to weekly payments in respect of that injury, by varying the amount of the worker's pre-injury average weekly earnings for the purposes of the calculation of the amount of the weekly payment in accordance with the formula:
where:
A is the amount of the worker's pre-injury average weekly earnings within the meaning of Division 2 or, if that amount has been varied in accordance with this section, that amount as last so varied.
B is:
(a) the CPI for the December quarter immediately prior to the review date when the review date is 1 April, or
(b) the CPI for the June quarter immediately prior to the review date when the review date is 1 October.
C is:
(a) the CPI for the June quarter immediately prior to the review date when the review date is 1 April, or
(b) the CPI for the December quarter immediately prior to the review date when the review date is 1 October.
(2) In this section:
CPI means the consumer price index (All Groups Index) for Sydney issued by the Australian Statistician.
review date means 1 April and 1 October in each year.
(3) A variation of an amount of a worker's pre-injury average weekly earnings under this section does not take effect to the extent (if any) to which it increases that amount to more than 100% of the worker's ordinary earnings (calculated in accordance with Division 2) expressed as a weekly sum to which the worker would be entitled if he or she were employed in the same position or positions (if it or they can be identified) as he or she was employed in immediately before the injury, being the position or positions on the basis of which the calculation of the worker's pre-injury average weekly earnings was made.
(4) The Minister is, on or before each review date, to notify, by order published on the NSW legislation website, the number that equates to the factor for the purposes of the variation required for that review date under this section.
(5) A notification published on the NSW legislation website after a review date for the purposes of the variation required for that review date under this section has effect as if published before that review date.”
SUBMISSIONS
The appellant’s submissions
Ground 1: The Arbitrator erred in law by finding the worker suffered a disease injury (a consequential psychological condition) pursuant to s 4(b)(ii) of the 1987 Act, having failed to consider, apply or satisfy the conditions set out in s 4(b)(ii)
The appellant contends that the Arbitrator should have found that there was no disease injury of a consequential psychological condition.
The appellant says that the only injuries found by the Arbitrator were “disease injuries” pursuant to s 4(b)(ii) of the 1987 Act.
The appellant contends that the Arbitrator fell into error in finding that Mr Abdul suffered a consequential condition as he failed to consider, apply or satisfy the conditions set out in s 4(b)(ii).
The appellant refers to the Arbitrator’s reasons, in particular where the Arbitrator:
(a) made reference to Dr Smith’s opinion that the causal relationship between Mr Abdul’s psychological condition and his injury was dependent upon whether Mr Abdul’s persistent pain and physical symptoms were related to the injury;
(b) accepted Dr Smith’s diagnosis and was satisfied that the pain and symptoms resulted from the injury, and
(c) accordingly found that the onset of the psychological condition resulted from the injury.
The appellant submits that the Arbitrator was entitled to consider the opinion of Dr Smith as “going to causation.”[41] It says that it is well established that a common sense approach is to be adopted when a causative element is involved, citing Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd.[42]
[41] Appellant’s submissions, p 8, [j]
[42] [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75 (Badawi).
The appellant asserts that although a personal injury within the meaning of s 4(a) of the 1987 Act is a personal injury arising out of or in the course of employment, in s 4(b)(ii) it is only an injury if the aggravation, acceleration, or deterioration of the disease occurred in the course of employment (appellant’s emphasis). The appellant says that Mr Abdul had no psychological condition (that is, a disease) during his employment to aggravate, accelerate exacerbate or deteriorate.
The appellant contends that while Dr Smith’s opinion may be one view on causation, that of itself did not go so far as to satisfy the statutory requirements of s 4(b)(ii) of the 1987 Act. This is said to be because “for the psychological condition to be an injury [it] must be the aggravation … in the course of employment of any disease”[43] and only if the employment was the main contributing factor to the aggravation.
[43] Appellant’s submissions, p 8 [m].
The appellant asserts error on the part of the Arbitrator in that the Arbitrator did not address or make findings in respect of the requirements of s 4(b)(ii) sufficient to satisfy a finding of disease (citing Tudor Capital Australia Pty Ltd v Christensen).[44]
Ground 2: The Arbitrator erred in law by finding that the worker suffered a disease injury pursuant to s 4(b)(ii) of the 1987 Act, being a consequential psychological injury, where the medical opinion relied on did not support such a finding and there was no other evidence sufficient to support such a finding
[44] [2017] NSWCA 260, [301], [329] and [335], (Christensen).
The appellant asserts that the Arbitrator should have found that there was no injury of a psychological condition.
The appellant says that Dr Smith’s opinion went no further than to say there may be a causative element, that is that Mr Abdul’s psychological condition was consistent with the injuries “if it was related to the injuries”. Such an approach, it submits, did not satisfy the requirements of s 4 of the 1987 Act.
The appellant observes that many of the symptoms of which Mr Abdul complained (such as headaches, memory loss, confusion and shoulder pain) were found not to be related to the injury, so that it is not known how Dr Smith’s “proviso” was satisfied. The appellant asserts that Dr Smith’s report did not provide a foundation to make the finding, that the Arbitrator did not rely on any other evidence and there was no other evidence that could ground the Arbitrator’s finding.
Further, the appellant submits that the Arbitrator made no reference to the “underlying facts” with respect to his finding of a disease of a consequential psychological condition and did not undertake a precise consideration of the factual evidence in order to determine whether “these” constituted an injury.
The appellant submits that this is a constructive failure to exercise jurisdiction and is an error of law, again citing Christensen.
Ground 3: The Arbitrator erred in law by finding that the worker suffered a disease injury pursuant to s 4(b)(ii) of the 1987 Act in respect of the neck and low back on 1 September 2016 and thereafter suffered the onset of a consequential psychological condition and failed to consider, apply or satisfy s 9A of the 1987 Act
The appellant submits that the Arbitrator should have found that there was only a frank injury in respect of the neck and back.
The appellant contends that the injurious event may have aggravated a disease condition but that it was unequivocally a frank injury of the kind referred to in Rail Services Australia v Dimovski.[45] The appellant refers to the judgment of Hodgson JA in which His Honour observed:
“Section 16 applies only if the injury ‘consists in’ the aggravation etc of a disease. If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstance that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury ‘consists in’ the aggravation of a disease. One strange result of the contrary view would be that a frank injury relied on and proved would, if it happened to aggravate a disease, and if incapacity did not commence immediately, be deemed under s 16(1)(a) to have happened at some time other than when it in fact happened.”[46]
[45] [2004] NSWCA 267; 1 DDCR 648 (Dimovski).
[46] Dimovski, [68].
The appellant submits that, as a consequence of finding that the appellant had suffered an aggravation of a disease pursuant to s 4(b)(ii) of the 1987 Act, the Arbitrator fell into error because he did not consider or apply s 9A of the 1987 Act. The appellant referred to the Arbitrator’s Reasons at [93]–[95], where the Arbitrator formed the view that it was not necessary to apply s 9A because the only injuries found were “disease injuries” within the meaning of s 4(b)(ii).
The appellant asserts error of law because the Arbitrator was required to determine whether employment was a substantial contributing factor to any injury Mr Abdul suffered within the meaning of s 4(a) of the 1987 Act.
Ground 4: The Arbitrator erred in law in applying retrospectively from 1 October 2017, Consumer Price Index increases pursuant to s 82A of the 1987 Act to the worker’s pre-injury average weekly earnings for 1 October 2016 and 1 April 2017
The appellant says that the Arbitrator should not have retrospectively adjusted Mr Abdul’s pre-injury average weekly earnings on October 2016 and on 1 April 2017.
The appellant asserts that the Arbitrator indexed Mr Abdul’s pre-injury average weekly earnings on 1 October 2016 and 1 April 2017, despite having determined that there were to be no adjustments on those dates.
Relying on Project Blue Sky Inc v Australian Broadcasting Authority,[47] the appellant submits that:
(a) the primary object of statutory construction is to construe the relevant provision (in this case s 82A of the 1987 Act) so that it is consistent with the language and purpose of the statute as a whole;
(b) a consideration of the statutory construction must always begin with an examination of the context of the provision on the prima facie basis that the provisions of the statue are intended to give effect to harmonious goals, and
(c) the Court must strive to give meaning to every word of the provision, the concept of the provision and must be consistent with the goals of the legislation.[48]
[47] [1998] HCA 28;194 CLR 355 (Project Blue Sky).
[48] Project Blue Sky, 381–382.
The first error is said to be the finding of the Arbitrator that there is no requirement that the indexation on 1 October 2016 and 1 April 2017 provided for by s 82A(3) ought to be ignored.[49] The appellant submits that it is s 83A(1) that triggers the variation and the variation is to the pre-injury average weekly earnings for the purpose of calculating the monetary entitlement to weekly compensation. Section 82A(1) directs attention to the figure “A” in the formula prescribed by s 36 and s 37 of the 1987 Act, which is the amount of the worker’s pre-injury average weekly earnings, or the amount of the pre-injury average weekly payments “as last so varied” by indexation.
[49] Reasons dated 21 March 2018, [24].
The appellant submits that the indexation can only occur on the review date, that is on 1 October and 1 April of each year. The words “as last so varied”, the appellant submits, require that the pre-injury average weekly earnings must have been actually varied on a prior review date.
The appellant contends that if the pre-injury average weekly earnings were not actually varied on a review date, they cannot be retrospectively varied. It says that there is no provision that allows for retrospective variation.
The appellant says that the Arbitrator was correct in determining that no variation in the weekly amount could take effect in October 2016 and April 2017,[50] and that determination put an end to the application of s 82A(1) of the 1987 Act.
[50] Reasons dated 21 March 2018, [18].
The appellant says that an “ancillary matter” arose, that is that it did not submit to the Arbitrator that it was appropriate to apply the index number to vary the ordinary weekly earnings on the review date of October 2017. The appellant says that to do so, in any event, would be manifestly wrong. It says the Arbitrator was correct to say that the index number was not to be applied to the ordinary earnings.[51]
[51] Reasons dated 21 March 2018, [10]–[11].
The appellant says that it is difficult to understand the Arbitrator’s determination that indexation must be applied uniformly to both s 44C(1)(a) earnings and s 44C(1)(b) earnings to achieve a consistent approach. It maintains that it is wrong to index ordinary earnings. The appellant says the proper approach is to apply ss 44C and 44D of the 1987 Act and then apply s 82A “on its face”. The appellant submits that the Arbitrator’s finding that it is necessary to apply the index number to the earnings calculated in accordance with s 44(1)(b) in order to calculate the varied average weekly earnings at review after the first 52 weeks is wrong.
The appellant submits it is wrong because:
(a) s 44(1)(b) provides for overtime and shift allowances to be included in the calculation of pre-injury average weekly earnings in the first 52 weeks;
(b) overtime and shift allowances form no part of the pre-injury average weekly earnings after the first 52 weeks, and
(c) the indexing is only to the sum of the pre-injury average weekly earnings.
The appellant contends that the Arbitrator “ratcheted up” the pre-injury earnings retrospectively to arrive at an indexed average weekly earnings of $907.41. It submits that the correct figure as at 1 October 2017 is $884.69, which was the ordinary weekly earnings and from that date becomes the pre-injury average weekly earnings. The correct indexation, it says, is $884.69 x 1.0072 (the prescribed indexation figure), which equates to $891.06.
The appellant submits that the amount of $891.06 exceeds the ordinary weekly earnings so that the pre-injury average weekly earnings are capped at $884.69, subject to s 82A(3).
The appellant refers to the words included in s 82A(3) that the weekly sum of the ordinary earnings is “the sum to which the worker would be entitled if he or she were employed in the same position as he or she was employed immediately before the injury.” The appellant says that these words require the Commission to consider what those earnings are at each review date. It says that the parties agreed that the appropriate figure for such ordinary earnings was $906.81 as at 1 October 2017. Because that sum is greater than the indexed pre-injury average weekly earnings of $891.06, Mr Abdul is entitled to 80% of $891.06, that is an amount of $712.85 per week from 1 October 2017.
The appellant asserts that the Arbitrator further erred in finding that a worker is entitled to a variation in his or her weekly award if the worker would have received an increase in earnings but for the injury.
The appellant says that there are two reasons for the error, namely:
(a) s 82A only deals with CPI increases and s 82A(3) operates to limit or cap the variation, and
(b) the calculation of pre-injury average weekly earnings is determined by s 44C and the ordinary earnings by s 44E of the 1987 Act.
Section 44C, it says, “provides that the pre-injury average weekly earnings means the average of the worker’s ordinary earnings during the relevant period”[52] (the appellant’s emphasis). Section 44D(1)(a) provides that in Mr Abdul’s circumstances, the relevant period is the period of 52 weeks before the injury, which is what the worker has earned in the past, not what he would earn in the future.
[52] Appellant’s submissions; p 13, [aa].
Similarly, the appellant says, s 44E of the 1987 Act directs the calculation of ordinary earnings to the base rate of pay for ordinary hours worked, when the worker worked. Again, the section is directed to past earnings, not future earnings.
The appellant submits that the Arbitrator increased the worker’s ordinary earnings by 2.5% (to $906.81) when the earnings should have been calculated pursuant to s 44E. It submits that consideration of the increase through a pay adjustment should only be considered at the time of application of s 82A, and does not operate to adjust the ordinary earnings for any other purpose.
The appellant maintains that there is no place in the legislative regime to adjust a worker’s ordinary earnings, and a fortiori the pre-injury average weekly earnings that the worker would have earned but for injury. The appellant described the 2.5% pay increase for Hospital Assistants on 1 July 2017 as “a furphy”.[53]
[53] Appellant’s submissions; p 13, [ee].
The appellant sought relief pursuant to s 352(7) of the 1998 Act, requesting the COD be revoked and a new decision made in its place. It seeks a new COD to be issued providing for no weekly payments to be made beyond 20 January 2018.
Mr Abdul’s submissions
In respect of Grounds 1, 2, and 3
Mr Abdul submits that the Arbitrator did not find that the psychological condition was a disease injury as defined in the 1987 Act. He found that it was a consequential condition caused by the aggravation injuries (which were injuries within the meaning of the 1987 Act) and by the continuation of pain and disability resulting from those injuries.
Mr Abdul refers to Kooragang Cement Pty Ltd v Bates[54] as authority to say that where an injury sets in train a chain of events that, if it remains unbroken, explains the relevant condition, then it is open to award compensation in respect of that condition, which results from the injury.
[54] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
Mr Abdul provided an overview of the Arbitrator’s findings. Firstly, the Arbitrator found that Mr Abdul suffered an injury by way of an aggravation of degenerative changes in the neck and back and that employment was a main contributing factor to that injury. Mr Abdul said that that finding was supported by the opinion of Dr Giblin and by Dr Walker, the appellant’s medical expert. The Arbitrator then found that as a result of those injuries and the ongoing pain from those injuries, Mr Abdul suffered a psychological condition.
Mr Abdul submits that the psychological condition was generated by the injuries and it was not necessary for the condition to satisfy the meaning of injury within the 1987 Act.
Mr Abdul submits that Dr Smith’s opinion was that if the persistent pain and symptoms were related to the injury, then his psychological condition was also related to the fall. He says that Dr Smith was clearly using the phrase “related to” in a causal sense.
Mr Abdul says that the Arbitrator weighed up all the relevant evidence before finding that the persisting pain and symptoms related to the fall, and finding that the psychological condition was also as a result of the injuries. The question of causation was a question of fact, and there was evidence and reasoning supporting the Arbitrator’s findings of fact.
Further, Mr Abdul submits that there was no other evidence or explanation for the development of his psychological condition, and there was no explanation provided by Dr Walker as to why his opinion was that Mr Abdul’s pain and persisting symptoms were not related to the injuries.
Mr Abdul contends that the appellant fails to specify the nature of the frank injuries it alleges the Arbitrator should have found and fails to refer to any evidence to support that assertion.
In any event, Mr Abdul submits, it makes no difference whether the injuries were frank injuries or aggravations as they clearly occurred in the course of his employment, while he was operating apparatus uniquely required in his employment. Employment was therefore a substantial contributing factor, consistent with Badawi at [107].
Mr Abdul asserts that the case the appellant is seeking to put on appeal is not the case it presented at arbitration. He says that the transcript does not record any submission that the psychological condition had to satisfy the requirements of a disease injury within s 4 of the 1987 Act. The case put at arbitration was that the ongoing pain and persisting symptoms were unrelated to the work injury.
Mr Abdul complains that the appellant cannot be permitted to argue a case that was not put in the proceedings below.
As to Ground 4
Mr Abdul submits that the Arbitrator was required to quantify the weekly payments by reference to past periods of entitlement, and did so in accordance with the provisions of s 82A of the 1987 Act. He said the Arbitrator varied the amount of the weekly payments in accordance with s 82A(1) for each April and October review date after the injury. He then applied s 82A(3) to decide what effect the variation had on the weekly entitlements. Mr Abdul submits that the Arbitrator did not err in that process.
Mr Abdul submits that s 82A of the 1987 Act provides for the variation of the amount of the weekly entitlement in subss (1) and (2) and then to “deny the effect” of the variation in circumstances set out in subs (3).
Mr Abdul contends that the critical words of subs (1) are “on each review date after the date on which the worker became entitled to weekly payments in respect of” his or her injury (that is 1 April and 1 October).
Mr Abdul says that the appellant is saying that the payment should not be varied if it will not have effect. He submits that the proper approach is to firstly apply a variation on each review date and then proceed to give effect to it, subject to the extent permitted by subs (3).
Mr Abdul submits that the appellant seeks to have the first variation on 1 October 2017, more than a year after he first was entitled to weekly compensation. The variation proposed by the appellant, he says, is to vary the payment on 1 October 2017 by applying the formula to the weekly payment in September 2016. Mr Abdul submits that what is required is that the formula is to be applied by reference to the weekly payment calculated at the preceding review date and not the first day of incapacity.
The appellant’s submissions in reply
Grounds 1, 2 and 3
In response, the appellant refers to Mr Abdul’s submissions that the Arbitrator did not find that the psychological condition was a disease injury, but found it was a consequential condition resulting from the injuries and continuing pain and disabilities arising out of the injuries.
The appellant submits that it is clear that the Arbitrator held that Mr Abdul suffered a disease injury to the neck and back and thereafter suffered onset of a consequential psychological condition. The appellant queries that if the Arbitrator did not find the psychological condition was a disease injury, then what did the Arbitrator find?
The appellant makes reference to s 33 of the 1987 Act, which provides for weekly payments for incapacity, if the incapacity results from the injury. It says that what Mr Abdul appears to be asserting is that the Arbitrator found total incapacity for work, resulting from a consequential psychological condition that resulted from a disease injury to the neck and low back.
The appellant submits that “to make good this submission, [Mr Abdul’s] submission appears to rest entirely on the decision in [Kooragang]”.[55] The appellant appears to submit that Kooragang requires a common sense approach when evaluating the causal connection.
[55] Appellant’s submissions in reply, p 3, [6].
The appellant asserts that Mr Abdul has not identified any part of the Arbitrator’s decision where the Arbitrator made the finding that as a result of his injuries and the ongoing pain from those injuries, Mr Abdul suffered a psychological condition. The appellant says that may be because no such finding was made.
The appellant contends that “the closest the Arbitrator came”[56] to making such a finding was at [92] of the decision of 12 January 2018, quoted as follows:
“I am satisfied that the proviso referred to by Dr Smith has been made out, that Mr Abdul’s persistent pain and physical symptoms result from the work injury and I accordingly accept that Mr Abdul has suffered the onset of a psychological condition as described by Dr Smith as a result of the injuries suffered in the fall on 1 September 2016.”
[56] Appellant’s submissions in reply, p 5, [16].
The appellant submits that the Arbitrator has not identified the actual causal link between the persisting pain and physical symptoms and the psychological condition. It says that at its highest, it could only be that the psychological condition was related to the injuries. The appellant accepts that “this” may be treated as going to causation, it cannot be a substitute for a clearly articulated exposition of how it was found that the onset of the psychological injury resulted from a disease injury to the neck and low back.
The appellant further complains that the Arbitrator “did not address let alone make any critical finding as to either of these paths.”[57] The “paths” referred to seem to be a finding of incapacity resulting from the neck and back injury.
[57] Appellant’s submissions in reply, p 5 [19].
The appellant maintains that the Arbitrator did not apply either ss 4 or 33 of the 1987 Act to the facts, and, if he did, Dr Smith’s report did not provide a proper foundation for the finding.
Ground 4
The appellant makes no further submissions on this ground in reply.
DISCUSSION
Grounds 1, 2 and 3.
The appellant’s grounds of appeal are circuitous and poorly drafted. Distilling the elements of each of the first three grounds of appeal, I have identified that the appeal alleges error on the part of the Arbitrator in respect of:
(a) failing to consider and apply s 4(b)(ii) of the 1987 Act in his determination that Mr Abdul’s psychological condition was compensable;
(b) finding Mr Abdul’s psychological condition was a “disease injury”;
(c) making that determination in the absence of medical or other evidence to support the finding, and
(d) finding that Mr Abdul suffered a “disease injury” to the neck and low back within the meaning of s 4(b)(ii), thereby failing to consider and apply s 9A of the 1987 Act.
The Arbitrator’s findings in respect of the psychological condition
The appellant’s submissions disclose a complete misunderstanding of the distinction between an injury and a consequential condition. The case brought by Mr Abdul was that his psychological condition arose as a result of the injuries he suffered on 1 September 2016, not that the psychological condition was an injury. The Arbitrator at no stage made a finding that Mr Abdul suffered a psychological injury or that such injury was a disease.
The Arbitrator identified the issues he was required to determine, including whether Mr Abdul suffered from a secondary (consequential) psychological condition.[58] There are a long list of authorities that establish that it is not necessary for a worker to prove that the consequential condition from which he or she suffers satisfies the definition of a s 4 injury.[59] It follows that s 9A does not apply to a consequential condition because the condition is not an injury. The test is one of causation, and if it is established that the condition results from the injury (that is, there is an unbroken chain of connection between the injury and the development of the condition), then the condition is compensable.[60]
[58] Reasons dated 12 January 2018, [8].
[59] Roads & Traffic Authority v Malcolm (1996) 13 NSWCCR 272; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4; Moon v Conmah Pty Ltd [2009] NSWWCCPD 134; Australian Traineeship System v Turner [2012] NSWWCCPD 4.
[60] Kooragang.
In Kumar v Royal Comfort Bedding Pty Ltd,[61] Mr Kumar suffered a back injury and during his recuperation period, developed symptoms in his right shoulder from using his right arm to lever himself upwards. He claimed the cost of surgery to his right shoulder. Deputy President Roche succinctly stated the settled law as follows:
“By asking if Mr Kumar has suffered a s 4 injury to his right shoulder, the Arbitrator erred in his approach and asked the wrong question. This error affected his approach to the medical evidence and his conclusion. Mr Kumar’s claim was always, as the respondent has conceded on appeal, that the right shoulder condition, and the need for surgery, resulted from the accepted back injury. It was not necessary for him to prove that he suffered a s 4 injury to his right shoulder.”[62]
[61] [2012] NSWWCCPD 8.
[62] Kumar, [35].
The appellant in this appeal does not challenge the Arbitrator’s finding on injury to the neck and low back.[63] The challenge is limited to the Arbitrator’s finding that it was a “disease injury” pursuant to s 4(b)(ii) rather than a “frank” injury pursuant to s 4(a). Nor has the appellant challenged the finding made by the Arbitrator that Mr Abdul’s injury had not resolved and he continued to suffer persisting pain and symptoms.
[63] Appellant’s submissions, p 9, (3)(b)
Even if the grounds of appeal were meant to raise issues on appeal in respect of those matters, the Arbitrator has not fallen into error in determining that Mr Abdul was injured and continued to suffer pain and symptoms as a result. The employer’s injury notification form, the Nepean Hospital records and the general practitioner’s notes all support the allegation of injury to the head, neck and low back, which was witnessed and reported on the day. The treating doctors’ reports provided a continuum of complaints in the neck and low back since the date of injury, and there had been no pre-injury symptoms. The Arbitrator referred to that evidence, and took into account the opinion of Dr Walker. He considered Dr Walker’s view that Mr Abdul had recovered from the effects of the injury was unexplained and on that basis rejected that view. It was open to him to do so.
In his consideration of whether the psychological condition (the presence of which was not in issue) resulted from the injury, the Arbitrator considered the opinion of Dr Anwar, the treating psychiatrist, who diagnosed “a depressive episode triggered by a work-related injury and impact of pain in his daily functioning.”[64]
[64] Reasons dated 12 January 2018, [55].
At arbitration, the appellant relied on its own psychiatric medico-legal expert, Dr Smith. The Arbitrator reviewed the opinion of Dr Smith in his reasons.[65] He noted a provisional diagnosis of “somatic symptom disorder with predominant pain, persistent, severe”. The Arbitrator accepted that as a valid and persuasive diagnosis. He noted Dr Smith’s opinion on causation was:
“Whether Mr Abdul’s psychological condition is related to the injuries as alleged depends on whether his persistent pain and physical symptoms are related to that incident,”[66] and
“It is unclear if Mr Abdul’s psychological symptoms … are related to the work incident in any way. Mr Abdul appears to have developed a sensitisation to somatic stimuli that might be unrelated to the work incident.”[67]
[65] Reasons dated 12 January 2018, [72] and [76].
[66] Dr Smith’s report, AALD dated 12 December 2017, p 12, [10].
[67] Dr Smith’s report, AALD dated 12 December 2017, p 14, [17].
The Arbitrator took the opinion of Dr Smith to be that for the psychological disorder to be compensable, the persisting pain and physical symptoms would need to result from the injury. That was a fair reading of Dr Smith’s report.
The appellant acknowledged that what is required when evaluating the causal connection is a common sense approach, as discussed in Kooragang.[68]
[68] Appellant’s submissions in reply; p 3, [6].
Having found injury, and that the pain and symptoms resulted from the injury, it was open to the Arbitrator to find that there was an unbroken chain of causation and the somatic symptom disorder resulted from the injury. Such a finding is supported by the expert evidence of Dr Anwar and Dr Smith, and there was no contrary evidence.
The finding that the injury was a “disease injury”
The appellant alleges that the Arbitrator has fallen into error in determining that the injury suffered was a “disease injury” pursuant to s 4(b)(ii), when it ought to have been determined that it was a frank injury, or personal injury, within the meaning of s 4(a) of the 1987 Act.
The injury sustained by Mr Abdul could fall within the definition of s 4(b)(ii), and the two subsections are not mutually exclusive. In Australian Conveyor Engineering Pty Ltd v Mecha Engineering PtyLtd,[69] the Court of Appeal considered the nature of an injury in circumstances where the evidence suggested there had been an aggravation of degenerative changes. In that case the worker was injured in a fall on 11 February 1992 (a ‘frank injury’). As in Mr Abdul’s case, the nature of the injury was the aggravation of pre-existing degenerative changes in his back (aggravation of a disease). The worker suffered a further injury to his back with a second employer as a result of the nature and conditions of his employment with that employer (a ‘nature and conditions’ injury), which further aggravated his degenerative condition. The trial judge apportioned liability between both employers under s 22 of the 1987 Act.
[69] [1998] NSWCC 51; 17 NSWCCR 309; 45 NSWLR 606, (Mecha).
On appeal it was held that while the injury on 11 February 1992 could have satisfied either definition of ‘injury’ in s 4 (either a “frank injury” or ‘”injury in the nature of an aggravation of a disease”) the words “injury consists in the aggravation ...of a disease” in s 16(1) should be construed as not referring to something which is an injury independently of its aggravating effects on a previously existing disease, but as being confined to what are entirely injuries by aggravation. In other words, the “frank injury” and the “nature and conditions” injury were separate injuries each giving rise to compensation entitlements. Justice Powell discussed the legislative history of s 4 of the 1987 Act and the High Court decision in Zickar v MGH Plastic Industries Pty Ltd[70] and referring to Zickar, relevantly said that:
“The effect of the decision of the majority is, thus, first, that, if there can be identified an incident which involves--either by being itself the change, or by bringing about the change--a physical change in the worker, then--even though that change may be no more than the culmination of a progressive disease, and not the product of some external force--that damage is to be regarded as an ‘injury’ within the meaning of par (a) of the definition of ‘injury’ in s 4 of the Act
…
In the present case, the medical evidence which was before the trial Judge was sufficient to demonstrate that, even before the fall which he sustained on 11 February 1992, the worker's lumbo-sacral spine had begun to degenerate…. This notwithstanding, the evidence of the worker, which was accepted by the trial Judge, was that, prior to the fall, his back condition was asymptomatic.
The worker's evidence, which was supported by that of his general practitioner, was that, following his fall, he began to suffer pain in his back and neck, which pain grew worse and led to his ceasing work for a period...
There thus having been an identifiable incident, which incident appears to have caused, at least, ligamentous injury to the lumbar spine segment, the sequelae of which involved pain, which was, for a time disabling, and which, in any event, has continued over the years, the decision of the majority in Zickar v MGH Plastic Industries Pty Ltd would seem to dictate that, even if it be the fact that the result of the incident was merely that the worker's pre-existing back condition was rendered symptomatic, he was nonetheless to be regarded as having sustained an injury within the meaning of par (a) of the definition of ‘injury’.”[71]
[70] [1996] HCA 31; 187 CLR 310 (Zickar).
[71] Mecha, [39]–[42].
Mecha was discussed and applied in Dimovski.
Applying the above reasoning (including the reasons of Hodgson JA in Dimovski, relied on by the appellant and quoted at [156] above), the injury should properly be considered a personal injury pursuant to s 4(a). The event satisfies the definition of injury in s 4(a) and the injury did not “consist in” the aggravation, acceleration or exacerbation of the disease.
The appellant has established error on the part of the Arbitrator and I set aside the Arbitrator’s finding that the injury was an injury in accordance with s 4(b)(ii) of the 1987 Act.
Pursuant to s 352(7) of the 1998 Act, where I am satisfied there is an error of fact, law or discretion, I may re-determine the issue.
As I have discussed earlier, the evidence clearly establishes that Mr Abdul suffered injury to the neck and low back in the incident on 1 September 2016. For the reasons set out above, I find that Mr Abdul suffered a personal injury within the meaning of 4(a) of the 1987 Act on 1 September 2016.
Section 9A
The appellant’s appeal point is that the injury falls within s 4(a) and that section requires consideration of whether the employment was a substantial contributing factor to the injury pursuant to s 9A.
The appellant submits that the Arbitrator has failed to apply s 9A of the 1987 Act. The Arbitrator’s failure to deal with s 9A came about because he determined that it was not relevant to a disease injury, which is correct. Section 9A(1) specifically excludes “disease injury” from the application of the section.
As I have determined that Mr Abdul suffered a personal injury pursuant to s 4(a), s 9A applies and must be determined. Noting that both parties were content for the appeal to be determined on the papers, I propose to determine that issue in this appeal.
Whether the injury is regarded as a personal injury pursuant to s 4(a) or a disease injury within the meaning of s 4(b)(ii) of the 1987 Act makes no difference to the outcome in this case. The Arbitrator found that the incident aggravated degenerative changes in Mr Abdul’s spine on 1 September 2016. In this incident, there is no issue in respect of fixing a date of injury or identifying the liable insurer. The same rights and entitlements flow irrespective of whether the injury falls within s 4(a) or s 4(b).
Section 4(b)(ii) requires that employment must be the main contributing factor to the aggravation of the disease.[72] The Arbitrator found that it was. Requiring a factor to be “the main contributing factor” is a more stringent test than “a substantial contributing factor”. If the employment contribution to the injury satisfies the test of “the main contributing factor”, then it follows that the test of “substantial contributing factor” is satisfied. The appellant does not take issue with the Arbitrator’s determination that employment was the main contributing factor but says that it was not relevant and s 9A requires determination.
[72] State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71.
Mr Abdul submits that the injury occurred in the course of employment, while he was operating equipment uniquely required in his employment. He relies on Badawi, and submits that employment was therefore a substantial contributing factor.
The appellant makes no submission on appeal (and made none to the Arbitrator) as to whether or not s 9A is satisfied in the circumstances of this case. The appellant had the opportunity to make submissions, both in his substantive submissions and in reply to Mr Abdul’s submissions that s 9A was clearly satisfied.
In Badawi, the majority undertook a review of previous decisions in respect of the meaning of “substantial contributing factor”. They said that the requirement involves a causative element, and observed (citations omitted):
“First, and perhaps most importantly, the word ‘substantial’, must be given effect. It is a word of ordinary English meaning. It is a word of evaluative concept. The word substantial has been said to be not only susceptible of ambiguity, but also to be a word calculated to conceal a lack of precision. Which of the various possible shades of meaning the word bears is determined by the context. Here, the concept and purpose of the introduction of s 9A was to remove the possibility of compensation for injury with only a ‘remote or tenuous connection with work’. This was the purpose [of] the amendment:...We would endorse the separate comments of Meagher JA and Davies AJA in Dayton v Coles Supermarket. As Meagher JA said, something which is minor is not substantial, or, as Davies AJA said, ‘substantial’ as it appears in s 9A means ‘in a manner that is real and of substance’ and does not apply where, as a matter of practical reality, the contribution of the employment to the injury was of, or had, ‘little substance’. We agree with his Honour that it is not useful to search for or use other terms, such as ‘large’, or ‘weighty’, or by way of further example, other concepts such as ‘predominant’. We consider that to do so may carry the vice of introducing concepts with different nuances from the words used by the legislature and which would take the meaning of the word beyond that needed to fulfil the purpose of the provision in its legislative context. In this respect, we prefer the views of Davies AJA in Dayton to the views in the extempore judgment in Bulga, which did not refer to Dayton and to the views of Mason P in Mercer. The words of the statute should be adhered to: ‘a substantial contributing factor’. The ‘proper link’ in the legislative context was a causal connection expressed by the words ‘a substantial contributing factor’, meaning one that was real and of substance. Given the conflict in the existing authority (Mercer, Bulga and Dayton), we think it important to clarify this issue.”[73]
[73] Badawi, [82].
The Arbitrator made the following observations in Mr Abdul’s case in his considerations relevant to “main contributing factor”:
“Dr Walker was of the view that there was no causal connection between employment and the ‘compensable condition’. He said that Mr Abdul was ‘performing a task that he had done many times before and one that is done by many people on a daily basis, but he simply fell due to his own clumsiness. He may have suffered a similar injury walking anywhere at any time.’
I do not accept that analysis. The actions performed by Mr Abdul at the time he suffered the fall were not actions that are performed routinely in daily life. Mr Abdul was moving backwards on a raised platform (trailer) when he came into contact with the bar or lever causing him to lose his balance and fall backwards onto the road. I do not accept that Mr Abdul may have suffered a similar injury ‘walking anywhere at any time’.
The actions that Mr Abdul was performing were peculiar to the employment task in which he was engaged and I am satisfied that those actions were the main contributing factor to the injury. There is no evidence that Mr Abdul's general health concerns played any role in his loss of balance and fall to the road.”[74]
[74] Reasons dated 12 January 2016, [81]–[83].
In addition to the Arbitrator’s identification of the factors that led to injury, Mr Abdul was moving the appellant’s large garbage bins and was manoeuvring them on the tray of the truck. The truck’s bar or lever contributed to Mr Abdul tripping and falling from the truck onto the road.
All of those factors contributed to the injury. There were no external factors that contributed to the incident. The accident was an incident to which Mr Abdul was exposed in the course of his employment and to which he would not otherwise have been exposed. Applying Badawi, approved in the subsequent decision of the Court of Appeal in Da Ros v Qantas Airways Ltd,[75] the appellant's employment was a substantial contributing factor to Mr Abdul’s injury pursuant to s 9A of the 1987 Act.
[75] [2010] NSWCA 89, [21]–[24].
The appellant has established error on the part of the Arbitrator in his determination that the injury was a “disease injury” as defined by s 4(b)(ii) of the 1987 Act. Otherwise, grounds one to three of the appeal have not been made out and fail.
For the reasons discussed above, I find Mr Abdul suffered an injury pursuant to s 4(a) of the 1987 Act to which employment was a substantial contributing factor in accordance with s 9A of the 1987 Act.
Accordingly, I amend the Certificate of Determination dated 12 January 2018 (as corrected by the Certificate of Determination dated 21 March 2018) at paragraph three by:
(a)deleting the word “disease”;
(b)deleting the words “section 4(b)(ii)” and inserting instead “section 4(a)”, and
(c)adding after the words September 2016 “to which the employment was a substantial contributing factor in accordance with s 9A”.
Ground 4
The appellant alleges the Arbitrator erred in law in retrospectively applying the Consumer Price Index increases pursuant to s 82A of the 1987 Act to the worker’s pre-injury average weekly earnings for 1 October 2016 and 1 April 2017.
Section 44C of the 1987 Act defines the pre-injury average weekly earnings to be the sum of the ordinary earnings during the “relevant period” and, during the first 52 weeks that weekly compensation is payable, any overtime or shift payment. In the circumstances of Mr Abdul’s case, the “relevant period” as defined by s 44D of the 1987 Act is the period of 52 weeks leading up to the injury on 1 September 2016. The parties agree that Mr Abdul’s pre-injury average weekly earnings figure as at 1 September 2016 was $900.42.
Section 44E of the 1987 Act provides that Mr Abdul’s ordinary earnings are the base weekly amount he was paid during the same relevant period, excluding overtime and shift allowances. The parties agreed that that figure was $884.69.
Section 82A of the 1987 Act provides for indexation of the pre-injury average weekly earnings on each review date (1 April and 1 October) (s 82A(1)) and the circumstances in which the indexation is to be applied (s 82A(3)).
Section 82A(3) precludes indexation if it increases the worker’s pre-injury average weekly earnings to a figure higher than the ordinary earnings, to the extent that it exceeds the ordinary earnings. For the purposes of s 82A(3), the ordinary earnings (calculated in accordance with Division 2 of the Act) are the weekly earnings the worker would be entitled to if he or she were employed in the same position as he or she was employed in when the injury occurred.
In this case, the parties agreed that from 1 July 2017, Mr Abdul’s ordinary earnings would have increased to $906.81, so that from the first review date thereafter (1 October 2017) Mr Abdul’s ordinary earnings were calculated as that figure. As the matter was determined before 1 April 2018 (the next review date), there was no need for the parties or the Arbitrator to consider any further calculation of the ordinary weekly earnings.
There is no dispute in relation to the Arbitrator’s award of weekly compensation up to and including 30 September 2017. It remains that I must consider whether the Arbitrator has erred in his application of s 82A to the calculation of Mr Abdul’s weekly entitlement from 1 October 2017.
For the period commencing from 1 September 2016, Mr Abdul’s first 52 weeks had expired, so that overtime and penalty allowances were excluded from his pre-injury average weekly earnings. His ordinary earnings figure of $884.69 became his pre-injury average weekly earnings for the period 1 September 2016 to 30 September 2016. The Arbitrator correctly determined that Mr Abdul’s pre-injury average weekly earnings were $884.69, that is, the ordinary weekly earnings calculated as at the date on injury. The contentious finding made by the Arbitrator was that the figure of $884.69 could be indexed in April and October 2016 retrospectively on 1 October 2017 to arrive at a calculation of the pre-injury average weekly earnings of $903.75 after indexation.
Mr Abdul submits that the Arbitrator was not in error. He contends that the first step is to vary the amount pursuant to s 82A(1) and then give effect to the variation to the extent that s 82A(3) permits. The difficulty with this submission is that it ignores the words used in the formula to be applied when calculating the variation. The formula set out in s 82A(1) provides that “A” is the pre-injury average weekly earnings or the amount that the pre-injury weekly earnings became after it had last been varied.
The Arbitrator correctly did not vary the pre-injury average weekly earnings for the periods prior to 1 October 2017 because that figure always exceeded the ordinary earnings.
The ordinary earnings cannot be varied except on the review dates where there is evidence that had the worker remained in the employment position, the ordinary earnings would have changed. In Mr Abdul’s case, the ordinary earnings became the basis of the amount used for his pre-injury earnings after the first 52 weeks of weekly payments.
The Arbitrator (correctly) determined the pre-injury average weekly earnings for the period 1 September 2017 to 30 September 2017 to be $884.69. There is no challenge to that calculation on this appeal. By operation of s 82A(1), that figure could not change until the next review date on 1 October 2017.
Prior to 1 October 2017, Mr Abdul’s pre-injury average weekly earnings had (correctly) not been varied, so that “A” in the formula could only be a number that had not been indexed.
The Arbitrator erred in retrospectively indexing the figure of $884.69. The indexation of the figure $884.69 on 1 October 2016 and 1 April 2017 is precluded by s 82A(3) because those amounts would have exceeded Mr Abdul’s ordinary earnings ($884.69), which for the purposes of s 82A did not increase until after those two review dates. The ordinary weekly earnings did not increase to $906.81 until 1 July 2017.
The Arbitrator was also in error in determining that the figure $884.69 could be varied on 1 October 2017 by the indexation numbers applicable to a review on 1 October 2016 and 1 April 2017 because of the operation of s 82A(1). Section 82A(1) only allows a variation of “A” in the formula. “A” is either a figure which has not been previously varied, or the figure “as last varied”. The figure that was to be reviewed on 1 October 2017 was Mr Abdul’s average weekly earnings of $884.69, which had not been previously varied.
The Arbitrator’s determination that the respondent is to pay $725.45 per week from 1 October 2017 to date and continuing pursuant to s 37(1)(a) and s 82A of the 1987 Act is set aside.
In accordance with the formula in s 82A, Mr Abdul’s pre-injury average weekly earnings of $884.69 as at 30 September 2017, when indexed on 1 October 2017 by the applicable indexation number of 1.0072, becomes $891.06. That figure is less than his ordinary earnings agreed at that time to be $906.81, so that the indexation applies.
Mr Abdul’s entitlement to weekly compensation pursuant to s 37(1) of the 1987 Act is therefore $891.06 x 80%, which is $712.85 per week from 1 October 2017 as adjusted from time to time in accordance with the 1987 Act.
DECISION
The Certificate of Determination dated 12 January 2018 (as corrected by the Certificate of Determination dated 21 March 2018) is amended at paragraph three by:
(a) deleting the word “disease”;
(b) deleting the words “section 4(b)(ii)” and inserting instead “section 4(a)”, and
(c) adding after the words September 2016 “to which the employment was a substantial contributing factor in accordance with s 9A”.
The Certificate of Determination dated 12 January 2018 is otherwise confirmed.
The Certificate of Determination dated 21 March 2018 is amended at paragraph 7(d) to delete the figure of “$725.45” and insert instead “$712.85”.
The Certificate of Determination dated 21 March 2018 is otherwise confirmed.
Elizabeth Wood
Deputy President
20 September 2018
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