State of New South Wales v Stewart
[2015] NSWWCCPD 1
•13 January 2015
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | State of New South Wales v Stewart [2015] NSWWCCPD 1 | ||
| APPELLANT: | State of New South Wales | ||
| RESPONDENT: | Jennifer Anne Stewart | ||
| INSURER: | QBE Australia Ltd | ||
| FILE NUMBER: | A1-8468/13 | ||
| ARBITRATOR: | Mr G Edwards | ||
| DATE OF ARBITRATOR’S DECISION: | 15 September 2014 | ||
| DATE OF APPEAL DECISION: | 13 January 2015 | ||
| SUBJECT MATTER OF DECISION: | Whether, as a result of three separate injuries, the worker suffered three separate and distinct incapacities; whether the worker is entitled to three concurrent awards for weekly compensation; injury; assessment of medical evidence; assessment of incapacity; application of principles in Steggles v Aguirre (1988) 12 NSWLR 693; award for weekly compensation for total incapacity when no claim made for total incapacity | ||
| PRESIDENTIAL MEMBER: | Acting President Bill Roche | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Rankin Ellison Lawyers | |
| Respondent: | Attwood Marshall Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. Paragraphs 1, 2, 3 and 4 of the Certificate of Determination of 15 September 2014 are revoked and the matter is remitted to another Arbitrator to determine the respondent worker’s entitlement to weekly compensation in accordance with the reasons in this decision. 2. Paragraphs 5 and 6 of the Certificate of Determination of 15 September 2014 are confirmed. 3. The appellant employer is to pay two thirds of the respondent worker’s costs of the appeal. That two-thirds proportion is assessed at $1,685 plus GST. | ||
INTRODUCTION
The main issue in this appeal is whether the Arbitrator erred in finding that, as a result of three discrete injuries to different parts of her body, the respondent worker suffered three separate and distinct incapacities for work that entitled her to three concurrent awards of weekly compensation.
Two preliminary matters should be noted.
First, because the respondent worker worked as an ambulance officer/paramedic for the Ambulance Service of NSW, she is exempt from the amendments introduced by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act) (see cl 25 Pt 19H of Sch 6 to the Workers Compensation Act 1987 (the 1987 Act)). Therefore, all references to the 1987 Act in this decision are to the provisions in force immediately prior to the amendments introduced by the 2012 amending Act.
Second, as the Ambulance Service of NSW “comprises those staff of the NSW Health Service who are employed primarily in connection with the provision of ambulance services under [Chapter 5A]” ( s 67A of the Health Services Act 1997) and as the government of New South Wales employs staff “to enable the Health Secretary to exercise his or her functions under Chapter 5A in relation to ambulance services” (s 116(1)(c)), the appellant’s correct legal identity is State of New South Wales (State of New South Wales v Bishop [2014] NSWCA 354 at [26]–[28]). The pleadings, and the Commission’s file, have been amended accordingly.
BACKGROUND
The respondent worker, Jennifer Stewart, started work as an ambulance officer for the appellant in 1999.
In September 2003, Ms Stewart was transferred to Eden in southern New South Wales. As Eden is an isolated area, her employment required her to drive long distances to, for example, take patients to Canberra, about 350 kilometres from Eden, and shorter trips to Pambula and Bega District Hospitals.
Ms Stewart alleged that she suffered the following injuries in the course of her employment:
(a) deep vein thrombosis in her right leg on 31 October 2007 after a period of lengthy driving (this condition was ultimately found to be iliac vein thrombosis – for convenience, I will refer to it as the right groin injury);
(b) lower back injury on 27 December 2007 when she slipped and fell and suffered lower back pain;
(c) injury to her right and left legs (hips) on 28 September 2010 from driving ambulances and getting in and out of ambulances (this condition was diagnosed as bilateral ilio-tibial band syndrome and bilateral trochanteric bursitis – for convenience, I will refer to it as the injury to the hips);
(d) lower back injury on 30 May 2011 while carrying a patient up flights of stairs;
(e) lower back injury on 24 June 2012 while lifting a patient on a stretcher;
(f) injury to the lower back and legs on 17 July 2012 while getting into and out of an ambulance, and
(g) injury to the lower back and legs on 20 October 2012 while driving an ambulance for extended periods.
Because of her injuries, Ms Stewart stopped work as an ambulance officer on 19 November 2012. Apart from a trial of light duties doing administrative duties (sitting at a computer) in February 2013, which, because of her injuries and because she had to drive 200 kilometres per day to get to and from work, she could not continue for more than four days, she has not worked since. The appellant’s insurer, QBE Australia Ltd (QBE), accepted the claim and paid voluntary weekly compensation until 11 April 2013.
In a letter dated 5 August 2013, Ms Stewart’s solicitor claimed:
(a) three concurrent awards of weekly compensation from 11 April 2013 for partial incapacity under s 40 of the 1987 Act as a result of each of the above injuries;
(b) lump sum compensation in respect of a seven per cent whole person impairment due to the back injury;
(c) hospital and medical expenses;
(d) interest, and
(e) costs.
After hearing lengthy submissions from the parties at the arbitration on 27 June 2014, but no oral evidence, the Arbitrator delivered a reserved decision on 15 September 2014. Essentially, the parties (and the Arbitrator) treated the claim as being based on three discrete injuries, namely:
(a) a right groin injury on 31 October 2007;
(b) an injury to the hips on 28 September 2010, and
(c) a lower back injury with sciatica radiating into the right leg, which the Arbitrator found was an aggravation of a disease which was deemed to have occurred on 19 November 2012, the date when Ms Stewart stopped work because of her injuries.
In light of Rail Services Australia v Dimovski [2004] NSWCA 267 at [68] and [85]; 1 DDCR 648 (applied by Emmett JA (Ward JA agreeing) in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 at [103]), and given that the pleadings alleged that Ms Stewart injured her back in five specific incidents, which was consistent with the evidence, it is difficult to see how the disease provisions could operate, even if those incidents caused an aggravation of a disease. However, neither side has challenged the Arbitrator’s finding that the back injury was an aggravation of a disease. Moreover, there is no dispute that, whether injury is characterised as an aggravation of a disease or a personal injury, Ms Stewart injured her back (in several incidents) in the course of her employment with the appellant, that her employment was a substantial contributing factor to that injury and that she suffers an incapacity as a result of that injury.
The Arbitrator noted (at [2]) that the appellant did not dispute that Ms Stewart suffered the injurious events claimed. He identified (at [10]) the issues in dispute to be:
(a) whether Ms Stewart was entitled to concurrent awards of compensation as a result of injuries resulting in separate and distinct incapacities for work;
(b) incapacity for work, and
(c) whether Ms Stewart was entitled to a general order for the payment of hospital and medical expenses under s 60 of the 1987 Act.
Before dealing with these issues, the Arbitrator considered the nature of each of Ms Stewart’s injuries.
Dealing with the injury to the right groin on 31 October 2007, the Arbitrator concluded, accepting the evidence from Dr John McKee, consultant surgeon, who Ms Stewart saw in 2011 at the request of QBE, that a long distance ambulance transfer of a patient by Ms Stewart to Canberra on 31 October 2007 “had caused the right femoral artery bleed, and ultimately compression on the right femoral nerve leaving [Ms Stewart] with chronic right groin pain” ([44]) resulting in iliac vein thrombosis.
The Arbitrator accepted (at [47]) Ms Stewart’s evidence that she experienced pain and discomfort in her right groin ever since 31 October 2007 and that her pain increased while driving ambulances, getting in and out of ambulances, attending patients, and sitting for prolonged periods. He found (at [60]) that the groin pain was due to the femoral artery bleed and compression of the right femoral nerve, which resulted in the iliac vein thrombosis with the sequelae of pain and discomfort in the right groin. He noted (at [61]) that the appellant had accepted liability for the injury to the right groin.
Though Ms Stewart was only off work for her right groin injury from about 10 November 2007 to 23 November 2007, the Arbitrator accepted (at [63]) Ms Stewart’s evidence that she continued to suffer pain in her right groin to the present.
Dealing with the injury to the hips, the Arbitrator accepted Ms Stewart’s evidence that she suffered injury to her hips, diagnosed as bilateral trochanteric bursitis, as a result of sustained driving and repeated climbing in and out of a high clearance four wheel drive Mercedes ambulance (identified as ambulance No. 240). He accepted that her symptoms continued up to the time of the arbitration and that Ms Stewart continued to work notwithstanding the pain in her hips.
Turning to Ms Stewart’s back injuries, the Arbitrator found that Ms Stewart suffered injury to her lumbar spine as a result of the several injurious events identified at [7] above. He accepted the evidence from Dr Hopcroft, the treating orthopaedic surgeon, that Ms Stewart’s primary problem was right sacroiliitis with atypical sciatic pain from lumbar spondylosis with probable nerve root irritation. He found that each injurious event aggravated Ms Stewart’s lumbar spine disease, which remained symptomatic to the time of the arbitration. Applying s 16 of the 1987 Act, the Arbitrator found the date of injury to be 19 November 2012, the date of Ms Stewart’s incapacity for work.
On the issue of Ms Stewart’s incapacity, the Arbitrator found that, as a result of the injuries to her right groin, hips and lumbar spine, Ms Stewart was unfit to work in her pre-injury employment as a paramedic/ambulance officer from 19 November 2012. He found (at [227]) that, except for the four days of light duties in February 2013, she was totally unfit for work until 23 April 2014.
On 23 April 2014 Ms Stewart was assessed by Mr Smith, physiotherapist, and Ms Carter, psychologist, at the Occupational Health Assessment Centre to be fit for work as a receptionist and/or medical receptionist, with restrictions, for 20 hours per week. The Arbitrator accepted that assessment as a measure of Ms Stewart’s capacity to work in suitable employment from 24 April 2014 ([201]–[202]).
The Arbitrator assessed Ms Stewart’s ability to earn, as a part time receptionist working 20 hours per week, to be $475 per week. He assessed her probable earnings but for her injury to be $2,500 per week. He did not accept there were any valid reasons to exercise his discretion to reduce the difference between these two figures ([215]), noting that Ms Stewart’s depression was secondary to her physical injuries ([224]).
The Arbitrator found (at [234]) that Ms Stewart’s three injuries (the right groin injury, the injury to the hips and to the lumbar spine) resulted in separate and distinct incapacities for work from 19 November 2012 and that she was therefore entitled to three concurrent awards of compensation pursuant to s 36 of the 1987 Act. As, by 11 April 2011, Ms Stewart had not received compensation for her first 26 weeks of incapacity, the Arbitrator found her to be entitled to her current weekly wage rate until the end of the first 26 weeks of incapacity ([236]). In the absence of any agreement on the current weekly wage rate, he gave the parties leave to apply to the Registrar to list the matter for a teleconference to receive further evidence and submissions, if necessary.
After the first 26 weeks of incapacity, the Arbitrator said (at [238]) that, as a result of separate and distinct incapacities for work resulting from the three injuries she received, Ms Stewart was entitled to three concurrent awards of weekly payments of compensation at the maximum rate for a worker without dependants to 23 April 2014 pursuant to s 37.
In respect of the period from 24 April 2014, the Arbitrator made three concurrent awards of weekly compensation at the maximum statutory rate for a worker without dependants in respect of the three injuries that resulted in three separate and distinct incapacities, such payments to continue in accordance with the provisions of the 1987 Act. The total of the three awards was not to exceed $2,500, the amount Ms Stewart would have earned had she remained in the same or some comparable employment.
The Arbitrator made a general order that the appellant pay Ms Stewart’s reasonably necessary medical and hospital expenses pursuant to s 60 of the 1987 Act.
The Commission issued a Certificate of Determination on 15 September 2014 in the following terms:
“The Commission determines:
1.Respondent to pay the applicant weekly payments of compensation at the current weekly wage rate, calculated in accordance with the provisions of s 42 of the unamended Workers Compensation Act 1987, from 11 April 2013 until the end of the first 26 weeks of incapacity pursuant to section 36 of the unamended Workers Compensation Act 1987.
2.Respondent to pay the applicant three concurrent awards of weekly payments of compensation in respect of three separate and distinct incapacities for work as a result of injuries after the first 26 weeks of incapacity at the maximum rate prescribed for a worker without dependants for each concurrent award of incapacity, as adjusted in accordance with the provisions of the unamended Workers Compensation Act 1987 but the total amount of the three concurrent awards is not to exceed the current weekly wage rate , to 23 April 2014 pursuant to section 37(1)(a)(i) of the unamended Workers Compensation Act 1987.
3.Respondent to pay the applicant three concurrent awards of weekly payments of compensation in respect of three separate and distinct incapacities for work as a result of injuries at the maximum statutory rate for a worker without dependants prescribed by section 40(5) of the unamended Workers Compensation Act 1987 for each concurrent award of incapacity from 24 April 2014 pursuant to section 40(1) of the unamended Workers Compensation Act 1987 with such payments to continue in accordance with the provisions of the unamended Workers Compensation Act 1987.
4.Leave granted to the parties in the absence of agreement as to the applicant’s current weekly wage rate to apply to the Registrar for the purpose of listing the matter for telephone conference with Arbitrator Edwards.
5.Matter remitted to the Registrar for referral to an Approved Medical Specialist to assess whole person impairment of the lumbar spine as a result of injury deemed to have happened on 19 November 2012. The following documents are to be sent to the Approved Medical Specialist:
(a) Application to Resolve a Dispute and attached documents;
(b) Applications to Admit Late Documents filed by the applicant on
9 January 2014, 17 June 2014 and 25 June 2014;
(c) Reply and attached documents, and
(d) Applications to Admit Late Documents filed by the respondent on
8 January 2014, 24 February 2014, 3 April 2014, 23 May 2014 and
28 May 2014.
6.Respondent to pay the applicant’s costs as agreed or assessed. For the purposes of Schedule 6 Table 4 Item 4 of the Workers Compensation Regulation 2010, I certify this matter as complex with a 30 per cent increase in costs otherwise available to the parties. This matter was certified complex because of the factual, medical and legal issues relating to a claim for concurrent awards of compensation as a result of three injuries suffered in several injurious events resulting in separate and distinct incapacities for work.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
The appellant has challenged the Arbitrator’s determination.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
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 and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The issues in dispute in the appeal may be summarised as follows, whether the Arbitrator erred in:
(a) making three concurrent awards of weekly compensation when there was only one incapacity resulting from the injury found as deemed to have occurred on 19 November 2012;
(b) finding a separate and distinct incapacity as a result of the injury to the right groin on 31 October 2007;
(c) finding a separate and distinct incapacity as a result of the injury to the hips on 28 September 2010;
(d) finding that Ms Stewart was entitled to three concurrent awards of total incapacity pursuant to s 36;
(e) finding that Ms Stewart was entitled to three concurrent awards pursuant to s 37 for total incapacity from an unknown date up to 23 April 2014, when there was no agreement or evidence as to the current weekly wage rate and thus no basis for determining whether or not such awards might exceed the statutory limit pursuant to s 37;
(f) finding that Ms Stewart was entitled to three concurrent awards pursuant to s 40 at the maximum statutory rate for a single worker when each injury found resulted, in part, in partial incapacity for the same type or the same comparable employment on the open labour market;
(g) failing to take into account, when making the awards of weekly compensation, the statutory cap on the maximum comparable or probable earnings figure prescribed by s 35;
(h) determining that Ms Stewart’s right groin injury was supported by Dr McKee;
(i) determining that Ms Stewart’s employment was a substantial contributing factor to the right groin injury, and
(j) giving insufficient and inadequate reasons to found more than one incapacity.
The appellant’s submissions in support of these grounds are discursive and overlap on several issues. The real issues on appeal are whether the Arbitrator erred in finding that:
(a) Ms Stewart injured her right groin (the right groin injury);
(b) the injury to the right groin caused a continuing incapacity for work (incapacity from the right groin injury);
(c) the injury to the hips caused a continuing incapacity (incapacity from the injury to the hips);
(d) Ms Stewart was entitled to an award for total incapacity from 11 April 2013 to 23 April 2014 (total incapacity), and
(e) Ms Stewart has three separate incapacities and therefore an entitlement to three awards of weekly compensation (three separate incapacities).
THE RIGHT GROIN INJURY
Submissions
The appellant’s solicitor, Darran Russell, who did not appear at the arbitration, submitted that Dr McKee did not provide support for the right groin injury and that the Arbitrator misconceived/misconstrued the doctor’s opinion. Moreover, he contended that employment was not a substantial contributing factor to that injury because the condition was caused by a non-work related angiogram puncture performed in relation to Ms Stewart’s hypertension and suspected renal complication. Mr Russell also relied on a report from Dr Andrews, consultant neurologist, dated 22 October 2009, in which the doctor said that there was damage to the femoral nerve at the time of the angiogram, which was not all that uncommon.
Discussion and findings
The challenge to the Arbitrator’s finding of injury to the right groin is unsustainable. At no stage did the appellant dispute that Ms Stewart suffered an injury to her right groin. The s 74 notices merely disputed, first, that employment was a substantial contributing factor to the injuries, second, whether Ms Stewart was incapacitated, and, third, whether she was entitled to hospital and medical expenses.
Indeed, as the Arbitrator noted at [61], the appellant accepted liability for the right groin injury (I note the submission on appeal by Ms Stewart’s counsel, Mr Frank Curran, not challenged by Mr Russell, that a claim for the right groin injury had been made and accepted by the appellant in 2007). The appellant did not attempt to resile from that position at the arbitration and it is therefore not open on appeal to argue that the Arbitrator erred in finding that Ms Stewart suffered such an injury.
In any event, the challenge to the Arbitrator’s finding is without merit. The history with respect to the right groin injury is that, in October 2007, Ms Stewart was diagnosed as being in a hypertensive crisis with blood pressure of 250/140. Because of her family history, it was feared that Ms Stewart might also have hereditary or acquired renal disease. As a result, on 22 October 2007 Ms Stewart had a renal angiogram because of a suspected blocked right renal artery. That procedure disclosed no pathology. Ms Stewart made a satisfactory recovery from it and resumed her normal duties, which included prolonged driving.
On 31 October 2007, after having driven 350 kilometres to Canberra hospital in the course of her employment, Ms Stewart experienced increasing pain in her right groin, at the site of the arterial puncture performed on 22 October 2007. Investigations for a suspected deep vein thrombosis were negative.
On 4 November 2007, Ms Stewart drove a total of 4.5 hours in the course of her employment to attend a two day paramedic course. During this trip, her right groin pain increased and, on her return drive home on 6 November 2007, she again experienced increasing pain in her right groin and her entire right lower limb became swollen between the hip and the foot. An ultrasonography on 7 November 2007 confirmed the presence of an iliac vein thrombosis, which required hospitalisation for five days and treatment with anticoagulant medication. Ms Stewart was unfit for about two weeks, returning to work on 23 November 2007.
In his report of 19 August 2011, prepared after an examination held at the request of the appellant, Dr McKee said, under “diagnosis and opinion”:
“The first injury undoubtedly had been on 31 October 2007 when about 10 days after renal angiography in Canberra on 22 October 2007, [Ms Stewart] had experienced increasing groin pain after a long distance ambulance transfer to Canberra. In retrospect it does appear the long distance transfer had caused the right femoral artery bleed, and ultimately compression on the right femoral nerve leaving [Ms Stewart] with chronic right groin pain which has been extensively investigated. … Despite ever since experiencing chronic intermittent right groin pain attributed to right femoral nerve injury caused by the bleed and haematoma, she has lost no further time from work.”
Mr Russell referred to evidence in Dr McKee’s report of 8 July 2013, where the doctor recorded that “[e]ver since the renal angiogram, Ms Stewart had continued to suffer from chronic right groin pain and this had been attributed to a post-angiography bleed which had caused local pressure on the femoral nerve at that site”. He contended that this bleed was “long before any work related cause and related solely to an investigation due to suspected renal artery dysfunction”, which was not work related.
Ms Stewart’s evidence, which the Arbitrator accepted, was that she had suffered right groin pain since the long drive on 31 October 2007 and that her pain increased while driving ambulances, getting in and out of ambulances, attending patients and sitting or standing for prolonged periods. After quoting the passage reproduced at [38] above, the Arbitrator said (at [44]) that it was evident that Dr McKee found that the long distance ambulance transfer of a patient to Canberra had “caused the right femoral artery bleed, and ultimately compression on the right femoral nerve leaving [Ms Stewart] with chronic right groin pain” resulting in the iliac vein thrombosis.
This conclusion was well supported by Dr McKee’s opinion in his report to the appellant of 22 August 2011 and was not undermined by Dr McKee’s observation, which appeared under “History of Injury” in his second report (and in his first report), that Ms Stewart had had chronic right groin pain since the renal angiogram that had been attributed to a post-angiography bleed. Mr Russell’s submissions have overlooked Dr McKee’s further evidence, also in his second report, that Ms Stewart’s injuries included, among other things, “[c]hronic pain syndrome secondary to partial thrombosis within the femoral nerve and lumbosacral nerve plexus” and that her employment with the appellant was a “substantial contributing factor to the injury”.
Dr McKee was well aware of Ms Stewart’s history when he saw her in 2011. That history included the history of right groin pain ever since the renal angiogram, attributed to post-angiography bleeding which caused local pressure on the femoral nerve (see the last paragraph of page three of Dr McKee’s report of 22 August 2011). Notwithstanding that history, he was satisfied that Ms Stewart’s employment, which included the long distance ambulance transfer on 31 October 2007, caused the right femoral artery bleed and, ultimately, compression on the right femoral nerve, thus leaving her with chronic groin pain. (Whether that was a second bleed or an aggravation of the first bleed was not explained.) This opinion was consistent with Ms Stewart’s evidence that she made a satisfactory recovery from the renal angiogram and resumed her normal duties only to develop significant symptoms while driving on 31 October 2007.
Even if Dr McKee’s opinion is thought to be ambiguous or inconsistent, given that neither side sought to cross-examine Dr McKee, or to ask him to clarify his opinion, it is not open to complain on appeal that the Arbitrator has accepted the doctor’s clearly stated opinion on causation. It is for the parties to run their cases as they see fit (Fitzsimmons v Coles Supermarkets Australia Pty Ltd [2013] NSWCA 273 at [23]). However, they must also live with the consequences of the forensic choices they make (Caruana v Darouti [2014] NSWCA 85 per McDougall J (Leeming JA agreeing) at [124]).
The evidence from Dr Andrews does not establish error by the Arbitrator. It was not evidence that counsel for the appellant relied on at the arbitration, presumably because injury to the right groin was not in issue. In any event, it was not evidence that the Arbitrator was bound to accept. Though the parties made no submissions about the report from Dr Andrews, the Arbitrator referred to it (at [38]) but, for reasons given, accepted the opinion of Dr McKee.
The Arbitrator’s acceptance of Dr McKee’s opinion was open to him, both on whether Ms Stewart injured her right groin and on whether employment was a substantial contributing factor to that injury, and disclosed no error. This ground of appeal was completely baseless. It appears that the real complaint is that Ms Stewart suffered no incapacity from this injury and this issue is considered next.
INCAPACITY FROM THE RIGHT GROIN INJURY
Submissions
Mr Russell contended that, if Ms Stewart suffered a right groin injury, she recovered from it and had no continuing incapacity as a result of it, noting that she returned to her pre-injury duties on 23 November 2007 and continued with those duties. He also relied on the evidence from Dr Purss, radiologist, in his report on a venous duplex scan of Ms Stewart’s right leg on 5 February 2008 that the deep veins in her right leg were normal and the “previously demonstrated external iliac vein of thrombus had resolved completely”.
Mr Russell also drew attention to the Arbitrator’s observation (at [62]) that Ms Stewart “had only one period of incapacity for work as a result of injury to the right groin: 6 to 23 November 2007”.
Discussion and findings
I do not accept Mr Russell’s submissions.
The fact that Ms Stewart returned to her usual duties after her right groin injury was of limited weight in determining if she had an incapacity as a result of that injury. Once Ms Stewart ceased to work for the appellant, her capacity to earn had to be assessed on the open labour market. That she continued with her normal work until her resignation did not mean that she was not incapacitated on the open labour market (Steggles v Aguirre (1988) 12 NSWLR 693, applied in Ranvet Pty Ltd v Vasilevski [2008] NSWWCCPD 81 at [72]–[75]). This is such a basic and accepted principle of workers’ compensation law that Mr Russell’s contention to the contrary, repeated several times in his submissions, was more than a little surprising.
The first question for the Arbitrator was whether the effects of the injury were continuing and, second, whether those effects reduced Ms Stewart’s physical capacity for doing work in the labour market in which she was working or might reasonably be expected to work (Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; 155 CLR 171 per Mason, Wilson, Deane and Dawson JJ at [13]).
The Arbitrator noted Ms Stewart’s evidence that she experienced constant right groin and leg pain from November 2007 and that the pain would increase with busy periods of work and long distance transfers. The pain persisted up to the arbitration and caused Ms Stewart to have difficulty driving, climbing stairs, walking long distances and sitting. The Arbitrator also noted (at [46]) the evidence from Ms Stewart’s treating general practitioner in his clinical notes for 15 August 2011 that the right groin still hurt with long trips and his note on 31 March 2011 of “[p]ain ++ just coping at work due to pain R groin”. The Arbitrator accepted this evidence and it was open to him to do so.
The Arbitrator also noted the consistent history recorded by Dr Powell, orthopaedic surgeon qualified by the appellant in November 2013, of Ms Stewart having pain and swelling in her right groin that resulted in ongoing difficulties and discomfort and swelling in the leg after prolonged sitting or squatting. This history provided further corroboration, if any were needed, that the effects of the right groin injury were continuing and that those effects reduced Ms Stewart’s physical capacity for work that required prolonged sitting or squatting. It follows that it was open to the Arbitrator to find that the effects of the right groin injury were continuing and that they contributed to Ms Stewart’s incapacity on the open labour market. The nature and extent of that incapacity is another matter and, as the appeal is partly successful, on another issue, will have to be re-determined at the next arbitration.
The relevance of the venous duplex scan on 5 February 2008 is unclear. The fact that the “previously demonstrated external iliac vein of thrombus had resolved completely” is of no consequence. A fracture may unite, thus resolve completely, but still leave pain and discomfort. Moreover, this was not a matter on which the appellant’s counsel, Mr Stephen Hickey, addressed at the arbitration. The issue was whether the effects of the injury continued. As explained above, Dr McKee and Ms Stewart, corroborated by the general practitioner’s notes, provided strong evidence that they did and it was open to the Arbitrator to accept that evidence, which he did.
The Arbitrator’s observation (at [62]) that Ms Stewart had only one period of incapacity as a result of the right groin injury is of no consequence and does not assist the appellant. A fair reading of the Arbitrator’s decision as a whole demonstrates that he did not think that Ms Stewart had fully recovered from the right groin injury by 23 November 2007. In the next paragraph the Arbitrator said:
“63.Notwithstanding that Ms Stewart had only one short period of incapacity as a result of the right groin injury, I accept Ms Stewart’s evidence that she has continued to suffer with pain in her right groin to the present.”
This finding has to be read with the Arbitrator’s observations (at [175]–[176]) that Ms Stewart was a conscientious and dedicated officer who attempted to perform her duties as best she could, and that she did not want to affect her career by making claims for compensation benefits. Furthermore, the Arbitrator accepted (at [177]) Ms Stewart’s evidence that she had pain and discomfort in her right groin, hips, legs, and low back and that she was assisted by her colleagues with her work tasks. It is patently obvious that the Arbitrator was satisfied that the effects of the right groin injury were continuing and that they contributed to Ms Stewart’s incapacity on the open labour market. This finding was open on the evidence and disclosed no error.
This ground of appeal is rejected.
INCAPACITY FROM THE INJURY TO THE HIPS
Submissions
Dealing with the injury to the hips, Mr Russell submitted that Ms Stewart took no time off work for her symptoms, which did not prevent her from performing all of her normal range of duties. He referred to Dr McKee’s history, recorded in his report of 16 August 2011, that Ms Stewart no longer had any problems with the ambulances once ambulance No. 240 was transferred to another station.
Furthermore, on examination on 16 August 2011 Dr McKee found Ms Stewart to have a normal stance and normal strength and sensory perception in both lower limbs with a full painless range of movement of the hips, knees and ankle joints. Mr Russell noted the Arbitrator’s observation (at [84]) that Ms Stewart continued to work as a paramedic/ambulance officer notwithstanding the pain she was experiencing in her hips while performing her duties.
Mr Curran submitted that the Arbitrator’s finding was open on the evidence.
Discussion and findings
I have already explained that the fact that a worker continues with his or her normal duties does not determine if that worker has an incapacity on the open labour market (see [49] above). The same observations I made when dealing with the incapacity from the right groin injury, in circumstances where Ms Stewart had returned to her usual duties, are applicable to the question of incapacity from the injury to the hips.
Dr McKee’s history that Ms Stewart had no problems with ambulances once ambulance No. 240 was transferred to another station is of limited, if any, relevance and does not establish error by the Arbitrator. As the Arbitrator noted at [73], the diagnosis of “bilateral iliotibial band syndrome”, which was part of the pathology involved in the injury to the hips, was made by Dr Reed, general practitioner, on the basis that Ms Stewart had to climb in and out of ambulance No. 240, which had a particularly high clearance. That was a significant problem for Ms Stewart because of her height of 153 cm. Dr Reed’s diagnosis was supported by Dr Bores, the nominated treating specialist.
Ms Stewart’s evidence about her hips (quoted by the Arbitrator at [83]) was as follows:
“26. Since time of injury I have had ongoing symptoms in both hips but more particularly in the right hip. I have persistent pain, difficulty sitting, driving and walking depending on the day. I am unable to sleep on my right side and I have significant insomnia due to the pain. I have had an increase in pain to my left hip post recent traction treatment [traction treatment undertaken in 2013 on referral by Dr Hopcroft, treating orthopaedic surgeon]. I have taken several days off work on sick leave due to the pain and I have had significant flare ups post injections.”
The Arbitrator accepted (at [86]) Ms Stewart’s evidence that, as a result of the injury to her hips, she continued to suffer with pain in her legs, especially bilateral hip pain, to the present. This finding was open on the evidence and was not affected by the transfer of ambulance No. 240. It was the work in that ambulance that caused the injury to Ms Stewart’s hips. However, the transfer of that ambulance did not mean that her symptoms stopped. Clearly, they did not.
Dr McKee’s history in his 2011 report that Ms Stewart no longer had any problems with the ambulances, as ambulance No. 240 had been transferred, has to be read in the context of the evidence overall. That evidence includes Dr McKee’s finding in 2011 that Ms Stewart had a slight tenderness over the lateral aspect of each femur trochanter, presumably over an underlying bursa. This finding was repeated in his 2013 examination, with the additional finding of right hip joint flexion of (only) 90 degrees and pain on internal rotation.
In his second report, Dr McKee said that he “continued to believe that [Ms Stewart’s] symptoms and resulting disability are quite genuine, and that they are work related”. This statement clearly included the symptoms in Ms Stewart’s hips, which Dr McKee diagnosed as bilateral trochanteric bursitis.
Dealing with Ms Stewart’s disabilities from all her injuries, Dr McKee said that she had chronic pain in the lower lumbar spine, right hip and right groin, with referred pain to the dorsum of the right foot. The pain resulted in significant restriction in regard to activities of daily living and, in particular, restrictions in regard to sitting, standing and walking times and an inability to jog and run, squat, kneel, bend and twist.
Thus, once Dr McKee’s reports are read together, and considered with Ms Stewart’s evidence, it was open to the Arbitrator to accept that Ms Stewart suffers an incapacity as a result of the injury to her hips, though it appears that the right hip was more affected than the left. This follows from the fact that her pre-injury duties as an ambulance officer required her to, among other things, sit for long periods and, on occasions, to adopt awkward postures with both her upper and lower limbs. It follows that Dr McKee’s examination finding in 2011 that Ms Stewart had a normal stance and normal strength and sensory perception in both lower limbs with a full painless range of movement of the hips, knees and ankle joints is of no consequence.
TOTAL INCAPACITY
Submissions
Mr Russell submitted that Ms Stewart’s claim was one for weekly compensation for partial incapacity from 11 April 2013 and that she made no claim for total incapacity.
Mr Curran made no submissions on this point.
Discussion and findings
The Arbitrator referred to the evidence from Dr Dias, consultant occupational physician, which he wrongly said (at [184]) Ms Stewart relied on in support of her claim that she was totally incapacitated. Mr Curran did not assert that Ms Stewart was totally incapacitated. Other than referring to the criticism of Dr Dias’s evidence by Dr Mellick, a neurologist qualified by the appellant, Mr Curran made no submission about the evidence from Dr Dias and did not rely on it to support a claim for total incapacity, or indeed the claim for partial incapacity.
Mr Curran only ever submitted that the claim for weekly compensation was for partial incapacity under s 40 of the 1987 Act (T5.27). Thus, the Arbitrator erred in assessing the claim as one for weekly compensation for total incapacity without first inviting submissions on that issue. It is a denial of procedural fairness, and therefore an error, to decide a case on a basis not argued (Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [78]; 3 DDCR 1; Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45 at [75]).
Though Dr Dias provided some support for a claim for total incapacity, that was not the claim pressed and, if the Arbitrator was minded to make such an award, he was obliged to give the parties the opportunity to make submissions on that issue. His failure to do so was an error.
THREE SEPARATE INCAPACITIES
The Arbitrator’s reasons
On the issue of whether Ms Stewart has three separate incapacities, the Arbitrator set out (at [181]) the following passage from Ms Stewart’s evidence:
“39. By the 19th November 2012 the pain was persistent and constant. I had never experienced anything like it. It was different to anything that I had ever had before. I had a burning sensation in my right buttock radiating down my right leg which was like a blow torch in nature and the pain rated 10 out of 10. I had difficulties walking with pain in my groin, my calf and my right hip. I had increasing hip and back pain with a band of pressure across my lumbar spine. I had a 5 day episode of severe spasms and was extremely limited in all my movements. I felt a deep ache in my buttock and I was unable to lift my leg at times. I felt tension in the surrounding leg muscles. I had pain in my groin and my right hip especially getting in and out of the vehicles.”
Referring to Cordina Chicken Farms Pty Ltd v Thoa Hong Le [2008] NSWWCCPD 125 (Le), the Arbitrator said that the determination of whether multiple injuries had resulted in separate and distinct incapacities was not done in the abstract, but was a question of fact in each case. He then quoted extensively from the report of Dr Dias dated 4 December 2013. Dr Dias said that, because of the injuries to her right groin, hips and back, Ms Stewart did not “currently have the capacity to regain and resume her duties as a paramedic/ambulance officer”. He thought that, in the future, Ms Stewart would have the capacity to return to work in a part-time, light, sedentary role. However, at the time of his examination, he did not believe that Ms Stewart was fit for alternate roles in employment external to the ambulance service.
The Arbitrator said that the evidence from Dr Dias was consistent with the evidence from Dr Hopcroft and Dr McKee. (That was not entirely accurate. While Dr McKee said that he thought Ms Stewart was totally incapacitated (see page 17 of Dr McKee’s second report), Dr Hopcroft merely said that Ms Stewart was not in a position to return to her pre-accident employment.)
The Arbitrator found (at [191]) that, as a result of her injuries, Mr Stewart was unfit to perform her pre-injury duties. He then considered Ms Stewart’s partial incapacity from 24 April 2014 (this date was selected because, on 23 April 2014, Ms Stewart underwent a work capacity assessment by Mr Smith and Ms Carter at the Occupational Health Assessment Centre).
Based on this assessment, the Arbitrator found that, from 24 April 2014, Ms Stewart was partially incapacitated for work “as a result of the three injuries (right groin, legs (hips) and back with referred pain into the right leg) which have resulted in three separate and distinct incapacities for work” ([201]). He found her to have a capacity to work in suitable employment, such as a receptionist or medical receptionist, for 20 hours per week and to earn in that work $475 per week. Deducting this amount from Ms Stewart’s probable earnings of $2,500 per week gave a difference of $2,025. The Arbitrator then gave reasons why he did not believe the figure of $2,025 should be reduced in the exercise of his discretion under s 40(1).
Returning to the issue of total incapacity, the Arbitrator said, at [227]:
“227.I find that Ms Stewart was totally incapacitated for work as a result of her injuries (right groin, legs (hips), back and referred pain into the right leg) from 19 November 2012, except for a period of four days when she performed suitable duties at the Lismore office in February 2013, to 23 April 2014.”
The Arbitrator then dealt (at [229]–[233]) with the absence of evidence about Ms Stewart’s current weekly wage rate. He said, at [234]:
“234.As I have found that the three injuries (right groin, legs (hips), back and referred pain into the right leg) resulted in separate and distinct incapacities for work from 19 November 2012, Ms Stewart is entitled to receive three concurrent awards of compensation pursuant to s 36 of the 1987 [Act].”
The Arbitrator said (at [235]) that each concurrent award must not exceed the amount of Ms Stewart’s current weekly wage rate. As there was no evidence of that rate, he gave liberty to the parties to apply on that issue.
At [238]–[242], the Arbitrator said:
“238.Ms Stewart is also entitled to three concurrent awards of weekly payments of compensation as a result of separate and distinct incapacities for work resulting from the three injuries (right groin, legs (hips) and back with referred pain into the right leg) after the first 26 weeks of incapacity at the maximum statutory rate for a worker without dependants, as adjusted in accordance with the provisions of the 1987 Act, to 23 April 2014 pursuant to s 37 of the 1987 Act.
239.I propose to make three concurrent awards of compensation at the maximum statutory rate in respect of each award for a worker without dependants pursuant to s 37(1)(i)(a) of the 1987 Act commencing at the end of the first 26 weeks of incapacity up to 23 April 2014. The total amount of the three concurrent awards must not exceed the current weekly wage rate.
240.As I have found that Ms Stewart [is] partially incapacitated for work from 24 April 2014 she is entitled to three concurrent awards of compensation in respect of the three injuries (right groin, legs (hips), back and referred pain into the right leg) that have resulted in three separate and distinct incapacities for work.
241.I propose to make three concurrent awards of compensation at the maximum statutory rate for a worker without dependants as prescribed by s 40(5) in respect of the three injuries (right groin, legs (hips) back and referred pain into the right leg) that have resulted in three separate and distinct incapacities for work from 24 April 2014 with such payments to continue in accordance with the provisions of the 1987Act.
242.The total of the three concurrent awards at the maximum statutory rate for a worker without dependants does not exceed the amount ($2,500) Ms Stewart would have earned if she remained in the same or some comparable employment uninjured.”
Submissions
With respect to the right groin injury and the injury to the hips, Mr Russell contended, for the reasons noted earlier in this decision, that Ms Stewart had no incapacity as a result of those injuries.
With respect to the back injury, Mr Russell submitted that there was no incapacity from Ms Stewart’s injury until her last date of work in her pre-injury duties on 19 November 2012, when she stopped work due to a build-up of back and right leg pain which occurred over time and up to that date. He conceded that there was an incapacity from 19 November 2012, but only as a result of the back injury and only a partial incapacity, noting that Mr Curran had presented the case as one of partial incapacity from 11 April 2013.
Mr Russell argued that Ms Stewart has only one incapacity, namely, an inability to perform her pre-injury work, which included sitting, standing and driving, and lifting and physically attending to persons requiring help. He said that the Arbitrator gave no proper reasons for finding that Ms Stewart has three separate incapacities. He submitted that, in effect, the Arbitrator determined that, as at 19 November 2012, there was an “intermingling of symptoms” which resulted in incapacity (Sedrak v Rooty Hill RSL Club Ltd [2014] NSWWCCPD 40).
Mr Curran submitted that the Arbitrator’s finding (at [176]), that Ms Stewart’s “injuries intensified to such an extent that she had to stop work on 19 November 2012” (emphasis added) was in accordance with her evidence and the Arbitrator was entitled to accept that evidence. The Arbitrator also accepted that Ms Stewart had pain and discomfort in the right groin, hips, legs, low back with referred pain into her right leg while carrying out her duties and was assisted by colleagues with her work.
Mr Curran contended that the evidence supports the Arbitrator’s finding that Ms Stewart is entitled to three concurrent awards for her three discrete injuries. He said that the Arbitrator acknowledged (at [183]) that a determination of whether injuries resulted in separate and distinct incapacities was not “done in the abstract”.
Discussion and findings
The Arbitrator’s finding that Ms Stewart suffers from three separate incapacities cannot be sustained.
The Arbitrator made no finding of what the alleged separate incapacities are. He merely found that Ms Stewart received three injuries: the right groin injury, the injury to the hips and the injury to the lumbar spine with referred pain down the right leg. He then found that, as a result of those injuries, she was incapacitated. That did not come close to establishing that Ms Stewart has three separate and distinct incapacities from her separate injuries.
As previously noted (see [66] above), when dealing with Ms Stewart’s disabilities from her three injuries, Dr McKee said that Ms Stewart had chronic pain in the lower lumbar spine, right hip and right groin, with referred pain to the dorsum of the right foot. The pain, from the three injuries, resulted in significant restriction in regard to activities of daily living and, in particular, restrictions in regard to sitting, standing and walking times and an inability to jog and run, squat, kneel, bend and twist. He added, somewhat oddly, that Ms Stewart had been totally incapacitated for work after the injury on 20 October 2012, which resulted in her ceasing work on 19 November 2012.
Dr McKee’s assessment was, to a large extent, consistent with the opinion of Dr Dias, who found that, as a result of her injuries, Ms Stewart was totally unfit at the time of his report of 4 December 2013. Though Dr Dias thought that Ms Stewart was permanently unfit for her pre-injury employment, he added that she may be fit for part-time light or sedentary work but not for at least the next six months. Neither Dr McKee nor Dr Dias suggested that Ms Stewart suffered separate incapacities as a result of each injury.
There is no evidence that Ms Stewart has a separate and distinct incapacity from each of her injuries. The evidence clearly establishes that, as a result of the combined effect of her three injuries, Ms Stewart is unfit for her pre-injury employment and unfit for employment that requires prolonged sitting, standing and walking, and an ability to jog and run, squat, kneel, bend and twist. That is a single incapacity that has resulted from multiple injuries.
In other words, the three injuries have each contributed, in varying degrees, to Ms Stewart’s inability to perform the tasks noted by Dr McKee. That has caused Ms Stewart to be incapacitated in the labour market reasonably accessible to her. There is no evidence to support a finding that each injury caused a separate and discrete incapacity and the Arbitrator erred in purporting to find that they did.
Furthermore, the Arbitrator gave no explanation of what the alleged incapacity was from each injury and, so far as the awards for partial incapacity were concerned, did not apply the five steps required in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 for each injury.
Though the Arbitrator referred to Le, and acknowledged that the determination of whether two injuries have resulted in separate and distinct incapacities is not done in the abstract, he failed to apply the principles discussed in that case and failed to assess the incapacity said to have resulted from each injury. It was not possible for him to do so because there is no evidence that each injury resulted in a separate incapacity.
The evidence assessed Ms Stewart’s incapacity by reference to the combined effect of her three injuries, not by reference to the effect of each injury separately. In the circumstances of the case, that was appropriate and correct because each injury contributed to the same incapacity, namely, an incapacity to do work involving prolonged sitting, standing, walking, squatting, kneeling, bending and twisting. Neither injury caused a separate incapacity that gave rise to a separate, quantifiable, incapacity.
With regard to the multiple concurrent awards for total incapacity, I note that it is impossible for a worker to recover multiple concurrent awards for total incapacity (Baker v NSW Police Force [2010] NSWWCCPD 10 at [25]). Once a worker is totally incapacitated because of an injury, it is impossible to suffer a second total incapacity, covering the same period, as a result of a separate injury. That is because, by definition, the first injury has eliminated the worker’s capacity to earn. Once that capacity is gone, it cannot be further reduced.
However, as explained in Le, it may be possible, in the appropriate case, to recover an award for partial incapacity for one injury and a later award for total incapacity for a second injury. In that event, once the award for total incapacity was entered, the award for partial incapacity would usually be reduced to a nominal figure in the exercise of the s 40(1) discretion. That situation does not arise in the present matter.
It follows that the Arbitrator’s finding that Ms Stewart suffered three separate incapacities, and that she was entitled to three concurrent awards of compensation, must be revoked and her entitlement to weekly compensation must be re-determined. As a result, so far as they relate to this issue, it is not necessary to deal with the other points argued by Mr Russell.
OTHER MATTERS
Though the Arbitrator said (at [243]) that he proposed to make an order that the appellant pay Ms Stewart’s reasonably necessary medical or related treatment expenses under s 60 of the 1987 Act, the Certificate of Determination made no such order. As the matter must be re-determined in any event, this omission should also be corrected at the next arbitration. Any award for the payment of s 60 expenses will include, among other things, the expenses incurred as a result of the right groin injury, which is no longer in dispute.
CONCLUSION
The end result is that the appeal is partly successful. The challenges to the finding that Ms Stewart injured her right groin and to the finding that that injury, and the injury to the hips, has contributed to Ms Stewart’s incapacity are unsuccessful. The Arbitrator’s findings on those issues are confirmed and are not open to be litigated at the next arbitration.
However, the challenges to the finding of total incapacity and the finding that Ms Stewart suffered three separate incapacities entitling her to three concurrent awards of weekly compensation are successful. Those findings, and the awards based on them, are revoked. As a result, Ms Stewart’s entitlement to an award of weekly compensation as a result of her three injuries must be re-determined before a different Arbitrator. If Ms Stewart seeks an award of total incapacity, particulars of that claim should be provided prior to the next arbitration and it will be necessary for the parties to call evidence of Ms Stewart’s current weekly wage rate.
DECISION
Paragraphs 1, 2, 3 and 4 of the Certificate of Determination of 15 September 2014 are revoked and the matter is remitted to another Arbitrator to determine the respondent worker’s entitlement to weekly compensation in accordance with the reasons in this decision.
Paragraphs 5 and 6 of the Certificate of Determination of 15 September 2014 are confirmed.
COSTS
Though this claim was made after 1 October 2012, and the Application to Resolve a Dispute was filed after 2 April 2013, the Commission retains power to determine by whom, to whom and to what extent costs are to be paid (s 341 of the 1998 Act). That is because, as Ms Stewart was a paramedic, the amendments introduced by the 2012 amending Act, which, among other things, repealed s 341, do not apply to or in respect of an injury received by her.
As the appeal has only been partly successful, and several of the grounds argued by the appellant were completely without merit, and contrary to long standing and accepted authority, the appellant is to pay two thirds of Ms Stewart’s costs of the appeal. As Ms Stewart is clearly entitled to an award of weekly compensation as a result of her injuries, she is also entitled to the costs of the first arbitration, and of the second arbitration, regardless of the outcome of the second arbitration.
The appellant employer is to pay two thirds of the respondent worker’s costs of the appeal. That two-thirds proportion is assessed at $1,685 plus GST.
Bill Roche
Acting President
13 January 2015
I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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