State Rail Authority of New South Wales v Regan
[2010] NSWWCCPD 14
•16 February 2010
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | State Rail Authority of New South Wales v Regan and anor [2010] NSWWCCPD 14 | ||||
| APPELLANT: | State Rail Authority of New South Wales | ||||
| FIRST RESPONDENT: SECOND RESPONDENT: | Stanley Regan Pacific National Pty Ltd | ||||
| APPELLANT’S INSURER: SECOND RESPONDENT’S INSURER: | Allianz Australia Insurance Ltd Self insured | ||||
| FILE NUMBER: | A1-5026/09 | ||||
| ARBITRATOR: | Mr Robert Foggo | ||||
| DATE OF ARBITRATOR’S DECISION: | 23 October 2009 | ||||
| DATE OF APPEAL DECISION: | 16 February 2010 | ||||
| SUBJECT MATTER OF DECISION: | Causation of injury; exercise of discretion (section 40 of the Workers Compensation Act 1987) | ||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Smuts McKenzie Lawyers | |||
| First Respondent: | White Barnes Lawyers | ||||
| ORDERS MADE ON APPEAL: | 1. Paragraphs 1, 2, 4, 5, 6, 7, 8, 9 and 10 of the Arbitrator’s determination dated 23 October 2009 are confirmed. | ||||
| 2. Paragraph 3 of the Arbitrator’s determination dated 23 October 2009 is revoked and the following decision made in its place: “The First Respondent is to pay the Applicant weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 as follows: $542.10 per week from 8 October 2008 to 31 March 2009; $563.00 per week from the 1 October 2009 to date and continuing.” The Appellant is to pay the worker’s costs of this appeal and those of the Second Respondent. | |||||
BACKGROUND TO THE APPEAL
Stanley Regan (‘the worker’), who is 55 years of age, commenced employment with the State Rail Authority of New South Wales (‘the Appellant’) in 1970. His duties were those of Station Attendant at the time he commenced that employment and he progressed to the rank of locomotive driver, which position he occupied for many years. By reason of a restructuring of his employer’s affairs his employment was transferred to National Pacific Pty Limited (‘Pacific’) on 30 June 1996. The changes which occurred at that time had no consequences so far as the day-to-day performance of the worker’s duties was concerned.
Whilst employed by the Appellant the worker received injury to his neck on a number of occasions. During his employment with Pacific he received injury to both his knees and, on a number of occasions, received injury to his neck. The various injuries caused incapacity and gave rise to the need for medical treatment from time to time. It appears that the worker was compelled, by reason of incapacity, to cease work with Pacific on 31 July 2004. He claimed and was paid weekly compensation and medical expenses by the Appellant’s insurer until 7 October 2008.
Following cessation of voluntary payment of compensation benefits a dispute arose between the parties and an Application to Resolve a Dispute (‘the Application’) was filed with the Workers Compensation Commission (‘the Commission’) on 29 June 2009. That Application sought orders with respect to payment of weekly compensation, medical and related expenses and lump sum compensation pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).
The dispute came before an Arbitrator for conciliation/arbitration on 30 September 2009. The matter proceeded to hearing at which time each of the parties was represented by counsel. The proceedings were recorded and a transcript of evidence given by the worker and submissions put on behalf of each party has been produced (‘T’). The Arbitrator reserved his decision at the conclusion of the hearing, and a ‘Certificate of Determination’ issued on 23 October 2009. That certificate was accompanied by a Statement of Reasons for the Arbitrator’s decision (‘Reasons’).
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 23 October 2009 records the Arbitrator’s orders as follows:
“The Commission determines:
1.The Applicant’s proceedings against the Second Respondent Freight Rail and the Third Respondent Freight Corp are discontinued.
2.I dispense with the requirement to file Notices of Discontinuance.
3.The First Respondent is to pay the Applicant weekly compensation at the rate of $800.00 per week from 8th October 2008 to date and continuing.
4.The degree of permanent impairment in respect of the Applicant’s neck is remitted to the Registrar for referral to an Approved Medical Specialist for assessment in accordance with the WorkCover Guide to the Evaluation of Permanent Impairment with a date of injury of 29th December 1988.
5.The degree of permanent impairment in respect of the Applicant’s left leg at or above the knee is remitted to the Registrar for referral to an Approved Medical Specialist for assessment in accordance with the WorkCover Guide to the Evaluation of Permanent Impairment with a date of injury of 10th February 1998.
6.The degree of permanent impairment in respect of the Applicant’s right leg is remitted to the Registrar for referral to an Approved Medical Specialist for assessment in accordance with the WorkCover Guide to the Evaluation of Permanent Impairment with a date of injury of 29th May 2001.
7.The documents to be sent to the AMS are those accepted in to these proceedings, namely
· Application to Resolve a Dispute and attached documents
· Reply of the First Respondent and attached documents
· Reply of the Second Respondent and attached documents
· Documents attached to an Application to Admit Late Documents filed by the Applicant’s Solicitors with the Commission on 29th July 2009 (four WorkCover Certificates from Dr Hart)
· Documents attached to an Application to Admit Late Documents filed by the Applicant’s Solicitors with the Commission on 31st August 2009 (Documents produced pursuant to Direction by Dr Hart)
· Documents attached to an Application to Admit Late Documents filed by the Applicant’s Solicitors with the Commission on 22nd September 2009 (further WorkCover Certificate of Dr Hart and documents produced by Bay Village Medical Centre)
· Documents attached to an Application to Admit Late Documents filed by the First Respondent’s Solicitors with the Commission on 28th September 2009 (Clinical notes and medical records produced by Dr Hart and Bay Village Medical Centre)
· Documents attached to an Application to Admit Late Documents filed by the Second Respondent’s Solicitors with the Commission on 24th September 2009 (Personnel records and documents produced pursuant to Directions by the First Respondent)
8.The First Respondent to pay the Applicant’s Section 60 expenses, which relate to the Applicant’s neck injuries, upon production of accounts and/or receipts.
9.The Second Respondent to pay the Applicant’s Section 60 expenses, which relate to the Applicant’s knees, upon production of accounts and/or receipts.
10.The Applicant’s claims pursuant to Section 67 and costs are reserved until the issuing of Medical Assessment Certificate/s in these matters
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
An Application seeking leave to appeal against the decision of the Arbitrator was filed on behalf of the Appellant on 20 November 2009.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(i)finding that the worker’s psychological condition was due to his employment with the Appellant and the second Respondent;
(ii)failing to afford the Appellant and the second Respondent an opportunity to adduce evidence concerning the psychiatric condition of the worker;
(iii)finding that the worker’s incapacity resulted from a neck injury received in 1988 whilst employed by the Appellant;
(iv)rejecting the evidence of Dr Smith concerning the pathological state of the worker’s neck;
(v)failing to address the question as to the existence and relevance of a disease suffered by the worker;
(vi)the manner of calculation of the worker’s entitlement to weekly compensation, and
(vii)finding that the worker is totally incapacitated for work.
The issues which are summarised above have been taken from the Appellant’s submissions which accompany the Application filed with respect to this appeal. That document does not identify with any precision the grounds upon which the appeal is founded. Whilst the document purports to identify four distinct grounds of appeal, the form of the submissions is such that they constitute a general attack upon the Arbitrator’s reasoning process with attention given to particular findings or suggested omissions by him to determine matters in issue.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 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.
LEAVE
There is no dispute between the parties concerning threshold requirements as prescribed by section 352 of the 1998 Act.
The appeal having been lodged within the time prescribed by that section and the fact that the monetary threshold prescribed by that section has been met, together with a consideration of the arguments raised on appeal, lead me to conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.
EVIDENCE
The documentary evidence which was before the Arbitrator is summarised by him at [19] of Reasons.
The worker gave oral evidence before the Arbitrator following a ruling permitting cross-examination. The transcript records that evidence between pages 4 and 8.
The worker’s evidence
There are two written statements made by the worker in evidence. The principal statement is dated 14 January 2009. It is stated that the worker, a married man, has two dependent children and describes his occupation as that of driver. It is stated that on 29 December 1988 he was injured whilst travelling on a goods/freight train when the chair in which he was sitting collapsed. He suffered an injury to his neck which required that he be relieved in Casino NSW, following which he travelled to Brisbane and sought medical treatment. The statement records that that injury was “the first and main injury to my neck and indeed I have never recovered from it, although I have had further incidents”. The worker proceeds to describe problems he experienced with neck pain in 1990 and 1994.
The worker describes in his statement an injury occurring on 10 February 1998 to his left knee. That injury gave rise to a compensation claim and the worker was referred to Dr Adrian Van Der Rijt who carried out an arthroscopic procedure on 4 June 1998.
The worker states that he received an injury to his right knee in the course of his work on 29 May 2001. Compensation benefits were again claimed and an arthroscopic procedure was carried out on that injured knee by Dr Van Der Rijt.
The worker states that he received further injuries to his neck firstly in the course of his work on 19 November 2003 and then, on 21 November 2003, he was involved in a motor vehicle accident whilst travelling after undergoing physiotherapy treatment. The statement contains some detail of treatment received and it is stated “I remained off work and on selected duties from 21 November 2003 until 5 January 2004 [sic]”. It is stated that the Appellant declined liability and that compensation payments ceased on 7 October 2008.
The second statement, which is concerned with the worker’s claim brought pursuant to section 60 of the 1987 Act, is not directly relevant to the issues raised on this appeal.
There are a large number of medical reports from treating practitioners as well as numerous radiological studies concerning both the worker’s neck and each of his knees. In addition to that material the worker relies upon the evidence of Dr John E. C. Bentivoglio as found in his report of 13 November 2008. The worker also relies upon the evidence of Dr Anthony Bookallil, consultant neurosurgeon, who conducted an examination and provided a report dated 6 October 2004 to the Appellant. Relevant detail of these reports and radiological studies appears hereunder.
The worker relies upon the contents of two medical reports which he has apparently provided to Centrelink in support of his application for a disability support pension. The first of those documents, which addresses the injury sustained in 1988 to his neck, is signed by Dr Jason Hart and is dated 3 September 2008.
The second of those reports is incomplete in that the last page has been omitted from the enclosures with the Application. That document is signed by the worker on page one and is dated 18 September 2008. At page two of the report under the heading ‘Condition 1 - Condition with most impact’ is an entry under the heading “Diagnosis” stating “Anxiety/Depression”. The history is recorded as being “long history of anxiety and depression following chronic neck/back pains”.
The worker also relied upon the contents of the clinical records of Dr W Jason Hart that had been produced following the issue of a Direction. Under cover of a separate Application to Admit Late Documents dated 22 September 2009 the worker successfully sought tender of a medical certificate by Dr Hart dated 18 August 2009 which certified that the worker was unfit to work between 28 August 2009 and 28 November 2009. The date of injury was specified in that certificate as being 21 December 1988. Also attached to that Application were the clinical notes which had earlier been produced by the Bay Village Medical Centre of Bateau Bay NSW. Detail of these documents, where relevant, is discussed below.
Pacific’s evidence
The documentary evidence relied upon by Pacific are those attached to that Reply filed on its behalf on 17 July 2009. Those documents are not identified in the body of the Reply. In those circumstances it becomes necessary to identify those documents relevant to the issues raised on this appeal without the assistance of a schedule. The first document attached is a report of injury form which relates to a left knee injury which is said to have occurred on 10 February 1998. Also attached to the Reply are two reports from Dr Van Der Rijt the second of which dated 5 June 1998 makes reference to a left knee arthroscopy. That practitioner reports:
“In the medial compartment he had a large ragged posterior horn medial meniscal tear and this is consistent with the nature of his symptoms. As this was resected it was apparent there was an underlying degenerative cleavage tear in the posterior horn of the meniscus and this has been resected to stable tissue. He had Grade II disruption of the medial femoral condyle and lesser changes in the medial tibia.”
A “Claim for Compensation” relating to an injury stated to have occurred to the worker’s right knee on 29 May 2001 was in evidence. Also in evidence is a report from Dr Peter F Hall addressed to Pacific dated 4 November 2003. That report concerns the state of the worker’s right knee and it was Dr Hall’s diagnosis that the worker had sustained a “tear of the medial meniscus”. A similar diagnosis was expressed by Dr Paul A Miniter in a report dated 31 August 2001 addressed to Pacific.
A copy of claim form alleging injury to the worker’s neck occurring on 19 November 2003 is in evidence together with a copy of correspondence addressed to the worker from Pacific declining liability with respect to that injury.
A report of Dr Robert J Oakeshott dated 23 January 2004 addressed to Pacific is in evidence. That report includes a history of the injury alleged to have occurred on 19 November 2003 as well as a history of an injury allegedly occurring on 21 November 2003 whilst the worker was travelling to his home following treatment for his injured neck. It was Dr Oakeshott’s view that the cause of the worker’s alleged neck symptoms “is a significant constitutional degenerative condition at the C5/6 level in the lower part of his neck”. Dr Oakeshott notes the history of injury whilst employed by the Appellant in December of 1988 and a history of symptoms having been experienced “since that time”. Dr Oakeshott expressed the view that the injury reported to have occurred on 19 November 2003 “was not a significant contributing factor in any way in relation to his present neck condition”. A similar view is expressed in relation to the injury reported to have occurred on 21 November 2003.
Pacific relied upon three reports of Dr Anthony L G Smith, orthopaedic surgeon, two dated 23 February 2009 and the other dated 1 April 2009. Dr Smith notes in the principal February report that the worker “has a problem with his neck and both knees”. Dr Smith recorded a history that the neck problem experienced by the worker “dates back to 1988”. That report contains further detail of history that, to an extent, had been confused by the worker when narrating detail of particular incidents causing injury. Dr Smith expressed the view that the worker’s history suggested he had “symptoms emanating from the arthritic process in the cervical spine which was rendered symptomatic for the first time in 1988 at the age of 33. He has ongoing problems with his arthritic knees, the left becoming symptomatic when he was 43 years old in 1998, and the right becoming symptomatic when he was 46 years old in 2001”. Dr Smith considered that the neck injury in 1988 would have “settled itself after a few months”. Dr Smith appears to accept that the worker may have aggravated his neck symptoms from time to time with various activities at work. It was that practitioner’s view that such aggravations would “last a matter of days or weeks, no more than 3 months”.
Dr Smith diagnosed bilateral knee arthritis, which he described as “a constitutional malady”. It was accepted by Dr Smith that the only anomaly caused at work to his knees was the “meniscal tear” which had been treated successfully by Dr Van Der Rijt. Dr Smith stated in the second February report that the worker had suffered a 15% loss of efficient use of both lower limbs at or above the knee by reason of a constitutional condition which was unrelated to his employment. Dr Smith also expressed the view that, having regard to the radiological evidence available, the worker had suffered a 20% impairment of his neck. That practitioner repeated his view as expressed that the condition was “constitutional” and further stated that the condition was “age related” and was in no way related to work.
Dr Smith, in his report dated 1 April 2009, makes reference to history and the X-ray results and confirms his assessment of neck impairment of 20%. It is again stated that such impairment is a consequence of the degenerative process and “not due to any work injury in 1988 or 2003”.
Pacific relied upon those documents which were attached to the Application to Admit Late Documents lodged with the Commission on 24 September 2009. Those documents were described as ‘Pacific Personnel Records’ and ‘Documents produced by the State Rail’. A perusal of the many documents attached to that application suggests that the documents produced by the Appellant relate to claims made by the worker in respect of compensation benefits as well as associated reports of injury. Whilst the individual pages of documents attached have been numbered, no effort has been made to identify with any precision those documents produced by the Appellant and those which form part of Pacific’s documentary material, however, having regard to the relevant chronology, it appears those documents numbered 1 to 67 have been produced by the Appellant and the balance, that is between pages 68 and 129, are copies of records retained by Pacific. These voluminous documents include a number of medical reports, including that of Dr Denis H Nave, orthopaedic surgeon, dated September 1994 addressed to the Appellant. That material is discussed, where relevant, below.
Appellant’s evidence
The Reply filed on behalf of the Appellant had attached a series of WorkCover NSW medical certificates issued by Dr Reeves. Those certificates certified as to the worker’s incapacity in the year 2003 and 2004 and reference is made to “neck injury due to a fall”, the date of which is specified in some of those certificates as being 1988.
A number of medical reports which had been tendered by either the worker, Pacific or by each of those parties were also attached to the Reply.
A copy of correspondence dated 6 November 2001 from the worker to, it seems, the Workers Compensation Claims Manager of the Appellant is attached to the Reply. That correspondence outlines the history of injury dating back to 1988 and a request for approval for ongoing physiotherapy treatment.
An Application to Admit Late Documents filed on behalf of the Appellant on 28 September 2009 had attached clinical notes and medical records which had been produced by Dr Hart and Bay Village Medical Centre. Those documents were admitted into evidence.
Worker’s oral evidence
The Arbitrator granted an application made on behalf of Pacific that the worker be cross-examined. That evidence is recorded between T4 and T8. The worker, in response to questions put to him in cross-examination, stated that he thought he last worked for Pacific in the year 2002. Counsel suggested that in fact he had last worked in the year 2004. That suggestion was accepted by the worker. In the course of subsequent evidence the worker denied that he had accepted a redundancy payment at the time he ceased work. The worker stated that he had not looked for work since ceasing work with Pacific and that he did not believe that he could do any work. He stated that he could not do a light job on a part time basis because of “complications with the neck injury” (T7). The worker agreed with the proposition put to him by counsel that he could not do light work such as that of a car park attendant because he was worried that he might fall and reinjure his neck. The worker stated that he had reservations about doing anything that could possibly injure his neck.
The worker was not cross-examined by counsel appearing on behalf of the Appellant nor was there any re-examination of the worker.
SUBMISSIONS
Submissions before the Arbitrator
It was put by counsel on behalf of the worker that the 1988 injury “set everything off” and that any subsequent “aggravation” had been “of a passing nature”. Mention is made of the evidence of Dr Smith. Fleeting reference is made to the disability said to be suffered by the worker in each of his knees. A later assertion is made that the state of each knee causes the worker incapacity.
Those submissions put on behalf of the worker concerning entitlement to weekly compensation appear to accept that the consequences of the injuries alleged had given rise to partial incapacity. Notwithstanding the worker’s evidence under cross-examination it was argued that, whatever the present earning capacity of the worker may be, such would be so low that his entitlement to compensation pursuant to section 40 of the 1987 Act would not be less than the statutory maximum to which he would be entitled as an incapacitated worker with two dependent children.
Submissions were put on behalf of the Appellant that the only liability that may be arguable against it arises by reason of the alleged neck injury. It was argued that the worker suffered degenerative disc disease in his neck and that, symptomatically, the worker’s neck condition slowly worsened with the passage of time. The point was made in argument that the worker was able to return to his full duties following the 1988 injury. It was said that some of the medical experts (Dr Bookallil and Dr Steel) did not have an accurate or complete history. Reference is made in the course of submissions to the evidence of Dr Reitsma and Dr Newcombe in support of the proposition that the worker was capable of returning to his pre-injury work after injury whilst employed with the Appellant. Emphasis was placed upon the history recorded in November 2003 that an injury was received by the worker whilst he was shunting trains. It was put that at that time he developed a substantial increase in neck pain and other symptoms. Reliance was placed upon the provisions of section 16 of the 1987 Act. The thrust of the argument was that any liability would attach not to the Appellant but to the subsequent employer Pacific. Counsel made reference to the evidence of Dr Hart who had expressed the view in evidence that “the main problem is depression and anxiety”. It was put that such a condition was “not part of the Applicant’s case”.
Submissions put on behalf of Pacific made reference to the evidence of Dr Hart concerning the worker’s psychological disability. It is noted in those submissions that no psychological injury is alleged in the proceedings, however there is abundant evidence of the existence of such disability, which fact would be a matter of significance to be taken into account when the Commission was considering exercise of discretion granted by section 40. The worker’s submissions concerning the relevance of the 1988 neck injury were adopted by counsel and it was put that any subsequent aggravation of that injury could not be relevant to any ongoing incapacity. It was suggested in the course of submissions that the worker “probably worked until 31 July 2004”. It was not disputed by counsel that the worker had suffered injury to his knees whilst employed by Pacific, but it was put that there had been no resultant ongoing incapacity following such injuries. A general submission was put that any entitlement the worker may have to weekly compensation would be a “small” award pursuant to section 40 of the 1987 Act and that liability for such an award would be that of the Appellant.
Appellant’s submissions on this appeal
The Appellant’s submissions on this appeal may be summarised as follows:
1.It is put that the Arbitrator’s finding that the worker’s psychological condition was due to his employment with each employer was “outside the scope of the Arbitrator’s powers”. It is argued that such psychiatric condition was “not pleaded by the Applicant” and it was “inappropriate for the Arbitrator to make findings against [the employers] in respect of a non pleaded injury, to which the respondent was given no opportunity to submit any medical evidence in reply”. It is argued that the finding has significantly prejudiced the employers and that they were not given an opportunity to present relevant evidence.
2.It is argued on behalf of the Appellant that the Arbitrator’s finding with respect to ongoing incapacity having been caused by the injury received in 1988 is inconsistent with a fair consideration of the worker’s post injury work history. It is also put that the Arbitrator erred in failing to “mitigate the Applicant’s level of capacity in the context of [his] psychological condition, not proved to be work related”.
3.Reference is made to the evidence of Dr Smith and Dr McComb and it is argued that the Arbitrator erred in rejecting the opinion of Dr Smith. It is said that the Arbitrator has failed to properly consider the medical evidence which was before him.
4.The Appellant submits that the Arbitrator erred in failing to consider the “issue of disease” which had been raised both in documentation and submissions, as being a matter relevant to the determination of liability. It is said that any liability for compensation benefits should be that of the “last employer on risk, Pacific National”.
5.The Appellant challenges the calculation of monetary entitlement to weekly compensation as determined by the Arbitrator. It is argued that the award “has not been made in accordance with the legislation and the Arbitrator has acted ultra vires in making such an award”. It is suggested that there was a finding made by the Arbitrator that the worker suffers ongoing total incapacity. It is put that such suggested finding was made in error.
The worker’s submissions on this appeal
The worker argues that “no error was made by the Arbitrator in finding that the psychological condition, be it primary or secondary in nature, was work related as there was no evidence to the contrary”. Reference is made to the evidence of Dr Bookallil in support of the Arbitrator’s finding that the Appellant should be liable in respect of weekly compensation payable to the worker. The worker’s submissions include a reference to the nature of his work performed up until he “was finally dismissed from the employ of Pacific National”.
The worker (submissions [25] to [29]) attempts to support the Arbitrator’s calculation of monetary entitlement to weekly benefits. It is put that the Appellant’s suggestion that the Arbitrator had made a finding of total incapacity is unfounded. Notwithstanding this approach the worker appears to suggest, at [36a] of submissions, that the Arbitrator’s award with respect to weekly compensation requires correction which would reflect “the appropriate maximum statutory rate”.
Second Respondent’s submissions on this appeal
Pacific has filed a Notice of Opposition to this appeal which includes brief submissions in support of that Opposition. It appears that the primary argument is that the Arbitrator’s decision was made upon the evidence in accordance with law and “without error”. Reliance is placed upon those submissions put on behalf of Pacific before the Arbitrator at the hearing.
DISCUSSION AND FINDINGS
This appeal concerns a review of the Arbitrator’s decision concerning the worker’s entitlement to compensation benefits in respect of injury received by him to his neck. The Arbitrator’s findings and determination also addressed the worker’s allegation of alleged injury to his knees, however those findings and the Arbitrator’s orders concerning assessment of any entitlement to lump sums in respect of leg injuries is not the subject of any dispute. The first relevant injury alleged by the worker occurred in 1988. It is the worker’s case that he remained in employment until a date in 2004 when, by reason of incapacity, he was unable to continue. Notwithstanding the fact that each of the parties to these proceedings has adduced a very large volume of documentary material in evidence before the Commission, there is a degree of uncertainty and, in some cases, there are contradictions, concerning the precise history of the worker’s employment, the occurrence of injury and the immediate and ongoing consequences of injuries. There is no reliable evidence before the Commission concerning the periods during which the worker may have been absent from work by reason of incapacity following the various injuries which have been alleged in his Application. There is no precise evidence as to the details of compensation received by him. There is uncertainty as to the precise date on which the worker last performed duties with Pacific. There is contradiction between that which appears in the evidence and those matters put to the worker in the course of his evidence. The evidence does not disclose detail of the worker’s progress through the ranks as a Railway employee. All that is known is that he commenced work as station attendant and advanced to the rank of a locomotive driver. What is known is that he was employed as an Assistant Driver in the year 1994. The evidence suggests that on the worker’s last day at work he had been performing selected duties. The evidence is ambiguous as to the period during which such duties were performed and is almost completely silent as to the nature of those duties.
The worker has adduced considerable evidence concerning a work related psychological condition, however there is no allegation in his Application that such is an injury, in terms of the legislation, which gives rise to incapacity. An allegation appears in the Application that the worker has a dependent wife and two dependent children. There is no evidence concerning the question of dependency of these family members. It appears that the allegation concerning the dependency of the worker’s wife had been abandoned and there is a suggestion in the evidence that Mrs Regan works on a part time basis at a Child Care Centre. The eldest of the children is, on the slight evidence available, now 18 years of age. Nothing in evidence before the Commission clarifies the issue of dependency with respect to that elder child.
Each of these matters in respect of which there is uncertainty should have been addressed by the evidence in the worker’s case. Whilst there are two statements in evidence it is plain that no effort has been made to clearly define dates and circumstances to enable a proper adjudication of this claim. The task of the Commission both before the Arbitrator and on this appeal has been rendered particularly difficult having regard to the haphazard presentation of evidentiary material, the existence of contradiction within that evidence and the absence of precise statements or agreement in respect to matters fundamental to a determination of the parties’ rights. Much of the vast volume of documentary material is of little if any relevance to the issues raised and serves only to burden all concerned with the proceedings. Parties to proceedings in the Commission should in all cases, particularly matters such as the present which involves examination of events which have occurred over a period of 21 years, exercise care and apply careful consideration in the manner of presentation of their clients’ evidence and argument.
The matters complained of by the Appellant concern the Arbitrator’s findings concerning the nature of the injury received by the worker to his neck and his orders with respect to its liability to pay compensation benefits. There is also a challenge raised by the Appellant to the Arbitrator’s findings concerning the psychological condition suffered by the worker and its relevance or otherwise to the question of quantification of entitlement to weekly compensation.
The Arbitrator’s reasons
Before dealing with those arguments raised on behalf of the Appellant it is appropriate to examine the Arbitrator’s reasons to determine the basis upon which he concluded that the Appellant should bear liability with respect to the neck injury. Those reasons appear between [42] and [61] of Reasons. It is there that the Arbitrator considers the medical evidence relevant to the worker’s neck injury. The Arbitrator noted that Dr Smith concluded that the worker’s neck injury and symptoms were entirely constitutional. At [52] of Reasons the Arbitrator noted that Dr Smith had taken a history that the worker’s neck symptoms had never improved following the 1988 injury and yet that practitioner concluded that the initial aggravation to his neck in 1988 “would have settled itself after a few months”. The Arbitrator observes that Dr Smith “provides no information as to how, in the light of these histories, he came to the conclusion he did”. It was upon the basis of that analysis of Dr Smith’s report that the evidence was rejected.
The Arbitrator addressed the evidence of Dr Oakeshott between [56] and [58] of Reasons. The Arbitrator observes that Dr Oakeshott does not explain his view that the worker’s neck condition was “constitutional” having regard to “the fact that the Applicant sustained significant injury in 1988 and has had ongoing neck symptoms since that time”.
The Arbitrator makes reference to the Appellant’s argument founded upon the evidence of Dr Newcombe concerning the substantial increase in neck pain following the injury of November 2003. The force of that submission was “somewhat diminished”, in the Arbitrator’s view, having regard to Dr Newcombe’s notation that the worker “dates his neck trouble from an injury in 1988”. The Arbitrator makes note of the views of various medical practitioner’s concerning the state of the worker’s cervical spine in particular at C5/6 level and notes that Dr Jude, consultant physician and neurologist, was of the view that an MRI study demonstrated a disc prolapse at C5 and C6. Reference was further made by the Arbitrator to the various certificates issued by Dr Hart stating that the cause of the Applicant’s incapacity for work was his cervical injury in 1988 (it is apparent that the Arbitrator made a slip at [60] where the year ‘1998’ appears). Having summarised the lay and medical evidence the Arbitrator expressed his conclusion that he was “comfortably persuaded” that “the Applicant’s neck symptoms and his current incapacity for work are due to the neck injury which he received in 1988 whilst in employment with the first Respondent”.
The Arbitrator, at [72] of Reasons, noted that each counsel representing the employers had submitted that the worker had a significant psychological condition. The Arbitrator agreed that the worker’s psychological symptoms were “quite significant”. Reference was made by the Arbitrator to the evidence of Dr Hart, in particular his statement that the worker’s depression was “his main problem”. It was further noted by the Arbitrator that it was “not apparent to me why this injury has not been included in the present application in relation to the Applicant’s incapacity”. That notation was made following a summary of the evidence of Caroline Perry, psychologist, who attributed the worker’s condition, diagnosed as post-traumatic dress disorder, to the “many accidents during his time as a Railway driver”. The Arbitrator noted the submission put on behalf of the employers that, given that no psychological injury was alleged in the proceedings, it is appropriate to reduce the worker’s entitlement to weekly compensation in the exercise of the Commission’s discretion under section 40 of the 1987 Act. The Arbitrator proceeded to assess the worker’s entitlement and refused to exercise discretion as was argued on behalf of the employers.
This appeal is brought pursuant to the provisions of section 352 of the 1988 Act and is brought by way of review of the decision appealed against; section 352(5). Guidance concerning the appropriate manner of exercising that power to review may be gained from a consideration of the decision of the Court of Appeal in State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249 where it was observed by Spigelman CJ (with whom Basten JA and Bryson AJA agreed) at [30]:
“A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of Administrative Appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit….”.
I propose to deal with three distinct issues dealt with by the Arbitrator independently of the Appellant’s submissions given that the Appellant has failed to specify with any particularity the grounds upon which it seeks to challenge the Arbitrator’s findings. It is true that there are headings nominating grounds of appeal numbered 1, 2, 3 and 4, however the paragraphs under those headings are in narrative form and appear to challenge particular findings of the Arbitrator without there being a clear statement as to the nature of the suggested error, whether it be one of fact or law. Notwithstanding the difficulty which is thrown up by the form of those submissions, it is proposed to deal with each “ground” individually. That is to be found below (commencing at [63]).
The Arbitrator has rejected the Appellant’s arguments with respect to three distinct issues. Firstly, the Arbitrator has rejected argument advanced by it founded upon the opinion of Dr Smith. As noted above the Arbitrator has given reasons for such rejection and I am of the view that such conclusion was open to the Arbitrator upon the evidence. The Arbitrator’s conclusion is one with which I respectfully agree. I agree with the Arbitrator’s approach to the evaluation of the medical evidence concerning the issue of causation, and in reaching my conclusion I have taken into account the evidence, in part, of Dr Alan Nicholls, orthopaedic surgeon, concerning the likely consequences of trauma, as found in his report of 1 February 2002 addressed to the Appellant:
“One cannot be dogmatic as to whether this condition was caused or at least initiated by the 1988 fall, but accepting the history as given, namely that there were no previous neck symptoms or neck injuries and the condition has continued since that injury with progressively more persistent symptoms over the years, one cannot discount the possibility that the neck was normal prior to this injury and the sudden jerking and forced flexion injury to the neck caused a disc injury at this level. Accepting the history therefore one would have to concede that this incident probably was at least a significant contributing factor if not the cause of the disc problem. Whilst the progressive degenerative change, which has occurred over the years is part of a natural progressive primary process, one must concede that this process probably would not have occurred had it not been for the 1998 [sic 1988] incident.”
The second argument advanced on behalf of the Appellant which has been rejected by the Arbitrator relates to the relevance as suggested by it of the “disease provisions of the 1987 Act”. The general thrust of the argument was that the evidence, in particular the radiological investigations of the worker’s neck, supported the proposition that the worker suffered from a degenerative condition of the cervical spine. The argument appears to have been advanced that the degenerative condition had, from time to time, been aggravated in a relevant sense by work injuries including injuries during the course of employment with Pacific, the last employer. Upon acceptance of that argument liability for any incapacity found as a result of such injury and such aggravation would be that of Pacific.
The evidence plainly establishes that the worker, on a number of occasions, sustained aggravation of his neck symptoms which were initiated in 1988 and persisted thereafter including, on occasions, during the course of employment with Pacific. It is also plain that on those occasions his symptoms became more pronounced. Having reviewed the medical evidence, including, in part, that of Dr Nave in his report of September 1994, and having regard to the worker’s history of symptoms, I conclude that the probability is that the worker suffered, at the time of the 1988 injury, pre-existing asymptomatic cervical disc degeneration. Its noted by Dr Nave:
“There is no doubt from the x-ray report concerning films taken immediately after the injury in December 1988, that there was pre-existing cervical disc degeneration at that stage without any previous symptoms being obvious to the patient.”
Upon the basis of Dr Nicholl’s evidence I conclude it probable that a prolapse of a disc was then caused by the trauma. The worker’s neck has been rendered permanently symptomatic and such injury continues to cause incapacity. It may be seen that I have accepted, in part, the evidence of both Dr Nave and Dr Nicholls. Concerning the relevance of any subsequent aggravation I accept the evidence of Dr Bookallil as stated in his report of 6 October 2004 (at page 5):
“ I do not believe that the 2003 incidents have produced any increase in the problem and I do believe that all of Mr Regan’s disability is related to the 1988 incident.”
It was stated by Dr Nicholls, as quoted above, that the progression of the degenerative condition of the worker’s cervical spine “probably would not have occurred had it not been for the 1998 [sic 1988] incident”. It is for these reasons that the Appellant’s argument, referred to below, raised on this appeal founded upon the disease provisions should, in my view, be rejected.
The third matter raised on behalf of the Appellant, which had been rejected by the Arbitrator, concerns those findings made as to the psychological state of the worker. This subject was addressed by the Arbitrator between [78] and [83] of Reasons where it was stated:
“78.Caroline Perry psychologist in a note to the Applicant’s treating GP on what appears to be 11th May 2004, noted that the Applicant was acutely distressed and was in the midst of a panic attack at the time of his telephone call and that she believed his symptoms were “symptoms consistent with a diagnosis of Post Traumatic Stress Disorder related to many accidents during his time as a railway driver”.
79.Dr Hart’s certificates also include PTSD as a factor in his medical certificates (see his medical certificate 21st May 2007). However, in each of these certificates he has certified that the Applicant’s employment is a substantial contributing factor to this injury.
80.Given the comments made by Dr Bookallil and the psychologist, Ms Perry it is not apparent to me why this injury has not been included in the present Application in relation to the Applicant’s incapacity.
81.The Applicant’s Solicitors failure to include this injury does not, as claimed by the Respondents’ Counsel, mean that it follows that it is appropriate to exercise my discretion to substantially reduce the mathematical difference between step 1 and 2 of the Mitchell test because of the Applicant’s psychological condition.
82.Where there is convincing and probative evidence that the Applicant’s psychological condition was due to factors other then his employment with the Respondents I would readily agree with this. However, all of the doctors who comment on the Applicant’s psychological condition relate it to the Applicant’s employment with the Respondent.
83.In these circumstances it is in my view inappropriate to exercise my discretion to reduce the amount.”
It is, in my view, reasonable to conclude from those matters above quoted that the Arbitrator has found that the worker suffers from a psychological condition as described by the various practitioners and that such is related to “[the worker’s] employment with the Respondent”. It may be reasonable to conclude that the Arbitrator has made a slip in his reference to the term “respondent” and what was intended was the plural “respondents”. Whatever the case I would not treat the Arbitrator’s finding, as expressed, as one of “injury” in terms of the legislation being relevant to incapacity. No finding as to circumstance or time has been made. Nor, as addressed hereunder, do I consider it relevant to the question of quantification of entitlement to weekly compensation as argued on behalf of the employers.
Grounds of Appeal
The first “ground of appeal” is addressed between [36] and [43] of Submissions. The Appellant’s complaints appear to relate to the suggested finding by the Arbitrator that the Applicant “had a significant psychological condition”. It must be noted that both Respondents argued before the Arbitrator, as reiterated in these submissions, that the Applicant in fact suffered such a condition. There was abundant evidence of that fact. The Arbitrator has concluded that the worker does, in fact, suffer from a psychological condition. As stated above at [62] the Arbitrator has not, as suggested by the Appellant, made a finding of injury in a relevant sense. There is nothing to be found in the course of the Arbitrator’s reasons that suggests that he took into account such condition when assessing the worker’s capacity for work. The Arbitrator made it clear that the worker’s knee injuries, in respect of which Pacific has been found liable, made no contribution to incapacity. It is also abundantly clear from the Arbitrator’s reasons that his consideration of the worker’s psychological state was required only in the context of the employers’ argument suggesting that the existence of that psychological condition was relevant to assessment of entitlement to weekly compensation, in particular, with respect to the exercise of discretion granted by section 40.
The Arbitrator’s finding that the worker’s psychological condition was not relevant to the exercise of discretion was in my view a proper conclusion having regard to the relevant facts. A supervening injury may be relevant to the manner in which a worker’s entitlement to compensation is assessed (see Australian Wire Industries v Nicholson (1985) 1 NSWCCR 50). The discretion granted by the terms of section 40 of the 1987 Act must be exercised judicially and I respectfully agree with the Arbitrator’s approach to the matters raised in argument. The supervening or concurrent illness in the present matter is one which was, on the evidence which was not objected to and indeed relied upon by the employers, a result of his employment conditions. That the illness is work related is a matter relevant to a determination as to whether there should be a discretionary reduction of entitlement made as permitted by the section. The Arbitrator’s refusal to exercise the discretion in the Appellant’s favour when assessing weekly compensation was, in my view, proper in all the circumstances.
The Appellant’s second “ground of appeal” appears to relate to factual findings of the Arbitrator, in particular, his conclusion that the worker’s incapacity resulted from his employment with the Appellant and that it was causally related to the 1988 neck injury. These submissions numbered [44] to [50] also touch on the subject of exercise of discretion as I have addressed above.
For the reasons stated above at [56] I reject the arguments raised on behalf of the Appellant and reiterate my agreement with the reasoning process and the conclusions as stated by the Arbitrator.
The Appellant’s third “ground of appeal” appears to challenge the Arbitrator’s determination upon the basis of his failure to adequately address the issue of “disease”. The Appellant is correct in asserting that the Arbitrator has failed to deal with the arguments raised in the course of submissions concerning section 16 of the 1987 Act. For the reasons I have attempted to outline between [57] and [60] I conclude that the evidence does not support the Appellant’s contention that liability is to be determined having regard to proof of a disease process and the application of the relevant provisions of the 1987 Act.
The fourth and final “ground of appeal” challenges the manner in which the Arbitrator has quantified the worker’s weekly entitlement to compensation benefits. The Appellant’s challenge is well founded and the Arbitrator’s determination concerning quantification of weekly payment requires review.
It is suggested by the Appellant in the course of submissions that the Arbitrator has made a finding that the worker is totally incapacitated (Submissions [60] and [61]). It is plain that the Appellant has misconceived those findings made by the Arbitrator with respect to the issue of incapacity. The reasons as expressed by the Arbitrator indicate that he accepted the submission put by the worker’s counsel that he was capable of doing some work as a Car Park Attendant on a part time basis. At [71] of Reasons the Arbitrator stated plainly his reasons for determining that the worker’s ability to earn in his injured state would be in the sum of $400.00 per week. At page 10 of Reasons there appears a subheading “The Mitchell Steps”. That is clearly a reference to the decision of the Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’). Between [84] and [88] the Arbitrator purports to address those matters which are commonly recognised as the relevant steps, as pronounced in Mitchell, that the Commission is required to address when determining entitlement to weekly compensation pursuant to section 40 of the 1987 Act.
Given the matters as summarised immediately above it is plain that the Arbitrator has made a finding of partial incapacity, and it is clear that the Arbitrator has concluded that that incapacity results from the consequences of the neck injury, found to have been received by the worker in 1988.
The Appellant’s submissions do not address the questions of probable earnings but for injury and ability to earn in terms of section 40 as determined by the Arbitrator. I respectfully agree with the Arbitrator’s approach to those issues and his conclusions. The Appellant’s attack concerns, correctly in my view, the Arbitrator’s finding that the Applicant “is entitled to an award of weekly payments of compensation at the rate of $800.00 per week”.
No challenge has been raised either at the hearing or on this appeal to the worker’s allegation that his two children are and have been at all relevant times dependent upon him for support. In the circumstances, having regard to the Arbitrator’s findings as to incapacity and the relevant probable earnings and ability to earn, the worker’s entitlement is necessarily capped by the maximum weekly rate at which a worker with two dependent children may recover. With respect to the period from 8 October 2008 to date that entitlement ranges between $542.10 per week and $563.00 per week. In the circumstances the Arbitrator’s orders with respect to entitlement to weekly compensation requires revocation and substitution with orders in respect of the appropriate weekly rate. I have earlier dealt with the question concerning the proper exercise of discretion as granted by section 40 and reiterate my view that the Arbitrator’s approach was both open to him and, in my view, correct. It follows that there should be no reduction or discount of the weekly entitlement of the worker as determined by reference to the maximum rate recoverable.
It may be seen that, with the exception of those arguments advanced by the Appellant concerning the manner of quantification of the worker’s entitlement to weekly compensation, I have rejected the arguments raised otherwise challenging the Arbitrator’s reasons, his determinations and orders. In those circumstances the appeal must fail subject to substitution of the Arbitrator’s orders with respect to those weekly payments.
DECISION
Paragraphs 1, 2, 4, 5, 6, 7, 8, 9 and 10 of the Arbitrator’s determination dated 23 October 2009 are confirmed.
Paragraph 3 of the Arbitrator’s determination dated 23 October 2009 is revoked and the following decision made in its place:
“The First Respondent is to pay the Applicant weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 as follows:
$542.10 per week from 8 October 2008 to 31 March 2009;
$553.10 per week from 1 April 2009 to 30 September 2009, and
$563.00 per week from the 1 October 2009 to date and continuing.”
COSTS
The Appellant is to pay the worker’s costs of this appeal and those of the Second Respondent.
Kevin O’Grady
Deputy President
16 February 2010
I, EMMA LETHBRIDGE-GILL CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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