Tavella v Sydney South West Area Health Service (Concord Hospital)
[2009] NSWWCCPD 108
•28 August 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Tavella v Sydney South West Area Health Service (Concord Hospital) [2009] NSWWCCPD 108 | |||||
| APPELLANT: | Eduardo Victor Hugo Tavella | |||||
| RESPONDENT: | Sydney South West Area Health Service (Concord Hospital) | |||||
| INSURER: | Employers Mutual Limited, Agent for the NSW Treasury Managed Fund No. 2 | |||||
| FILE NUMBER: | A1-905/09 | |||||
| ARBITRATOR: | Mr G Adelstein | |||||
| DATE OF ARBITRATOR’S DECISION: | 12 May 2009 | |||||
| DATE OF APPEAL DECISION: | 28 August 2009 | |||||
| SUBJECT MATTER OF DECISION: | Claim for an increase in weekly benefits and lump sum compensation; whether medical treatment was “reasonably necessary”; sections 40, 60 and 66 of the Workers Compensation Act 1987. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | P K Simpson & Co | ||||
| Respondent: | Turks Legal | |||||
| ORDERS MADE ON APPEAL: |
“(1). Award in favour of the Applicant pursuant to section 40 of the Workers Compensation Act 1987 at the rate of $150.00 per week from 9 February 2009 to date and continuing. (2) Credit to the Respondent for any payments made to date.” | |||||
| ||||||
BACKGROUND TO THE APPEAL
The Appellant worker, Mr Tavella, was employed by the Respondent, Concord Hospital (‘Concord’) as a security officer. He injured his back on 31 May 2002 whilst attempting to remove motorised chairs from the back of a van. He had various forms of treatment and remained at work until August 2002 when he ceased and has not resumed work since.
He had previously injured his back with another employer in 1999. That injury was the subject of proceedings in the former Compensation Court in 2000 which eventually settled by way of commutation in the sum of $25,000.00
In 2005 Mr Tavella initially commenced proceedings in the Commission in relation to the injury at Concord in May 2002 (WCC 2865/05). Those proceedings were resolved by way of Consent Orders dated 23 January 2006 whereby the following was agreed:
“i. Award pursuant to section 66 in the sum of $8,750 in respect of 7% WPI lumbar spine;
ii. It was agreed that Mr Tavella had received all weekly payments entitlements up to 22 June 2004;
iii. The Respondent agreed to make voluntary payments of weekly compensation at the rate of $100.00 per week from 22 June 2004;
iv. The Respondent agreed to pay reasonable section 60 expenses.”
On 9 February 2009, Mr Tavella filed the present ‘Application to Resolve a Dispute’ in the Commission seeking the following:
i. An increase in weekly benefits from August 2002;
ii. Outstanding section 60 expenses of approximately $15,000.00 with over $9,000.00 due to Dr Papacosta;
iii. An increase in the permanent impairment of his back (now 9%);
iv. Section 66 entitlements for “Nervous System (Sexual Organs)” and for “Digestive System (Anal Fissure)”;
v. Pain and suffering compensation.
The parties attended a conciliation / arbitration hearing on 27 April 2009. After hearing detailed submissions from the parties’ legal representatives, the Arbitrator made various findings set out in an Amended Certificate of Determination dated 12 May 2009 as follows:
“1. I find in relation to the lumbar spine and digestive system (annular fissular) (sic) that these are work related injuries and are to be referred by the Registrar of the Workers Compensation Commission to an AMS. The date of injury is 31 May 2002. The low back is to be reviewed as to any deterioration since the previous AMS Certificate. The documents to be sent to the AMS are the Application, Reply, a copy of this Award, all medical material from the Applicant or Respondent, the Applicant’s statement and medical certificates. I find that there is no basis for the further claim for sexual dysfunction.
2. In relation to the weekly benefits claim I do not propose to make any allowance above the voluntary payments to date, but I do determine that from the date of this award thenceforth, the Applicant is entitled to weekly benefits at the rate of $150.00 per week.
3. I propose to allow one half of the treatments by Dr Papacosta as referable to the work related injury. I order that the Respondent pay half of the total amount of the total number of claims that have been made to date, payable at the schedule rate.
4. I order that the Respondent pay the Applicant’s costs to be assessed if not agreed. I accept that on the application of the Applicant that an uplift is appropriate in respect of the matter, which was both lengthy and complex. I consider the appropriate allowance in respect of an uplift is 25%. In coming to that view I note that there were general efforts to try and resolve the matter which took the balance of the first afternoon that had been set aside for the arbitration. I therefore am of the view that it is appropriate to make an order that both hearing dates be treated as separate items under Schedule 6.”
It is from this decision that Mr Tavella seeks leave to appeal.
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 submission 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
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. The amount at issue on appeal satisfies the threshold requirements of section 352(2).
Leave to appeal is granted.
THE ISSUES IN DISPUTE
Mr Tavella submits that the Arbitrator erred in relation to three issues namely:
a. The weekly payments award;
b. The section 60 expenses;
c. The section 66 claim for injury to the nervous system (sexual organs).
THE EVIDENCE
Mr Tavella’s Evidence
The evidence submitted by both parties was voluminous. Both parties relied upon evidence obtained in the earlier proceedings (WCC 2865-05) in addition to evidence obtained for the claim in relation to the 1999 back injury. In addition, there was extensive psychiatric evidence. Mr Tavella had initially claimed that he suffered a psychological injury as a consequence of an incident at Concord with another security officer in August 2002. That claim was withdrawn at the hearing before the Arbitrator.
I do not propose to canvass all of this evidence in detail, only that which is relevant to the issues on appeal.
There was no dispute between the parties that Mr Tavella suffered an injury to his back in the incident on 31 May 2002, nor that it rendered him at least partially incapacitated for work.
Mr Tavella was born in Argentina in 1951 where, after completing high school, he trained as a shoemaker and worked in that profession until he migrated to Australia in 1979. In 1999 while working as a sheet metal worker for T & M Industries, he injured his back. He also had referred pain in his left leg. After a period on selected duties, he was terminated and remained off work until he commenced employment at Concord in October 2001.
After his back injury on 31 May 2002, Mr Tavella underwent various forms of treatment including chiropractic and osteopathic until he eventually consulted his general practitioner, Dr Wilson, who prescribed anti-inflammatory medication and referred him for a CT scan and then to an orthopaedic surgeon, Dr Loefler. Dr Loefler injected his back at the left L/4 nerve root which provided only temporary relief. Mr Tavella then underwent a course of physiotherapy which similarly provided little relief from his symptoms. He also had numerous radiological investigations.
In a detailed statement dated 14 February 2005, Mr Tavella said that he continued to experience severe lower back pain and pain in his left leg, together with sexual dysfunction. These complaints were repeated in a further statement dated 31 October 2008. He said that since the settlement of the previous proceedings in January 2006, his “ medical condition has become significantly worse and in particular my back and leg pain have become significantly worse so that my loss of interest in sexual intercourse and sexual function has become worse.” He also said that he considered himself totally unfit for work since leaving Concord in August 2002.
In 2004 Mr Tavella consulted Dr Papacosta. He has provided treatment in the form of electro-acupuncture on a regular basis since, which Mr Tavella said was “the most effective form of treatment.”
Mr Tavella also reported that as a result of taking certain medications, he became constipated and developed an anal fissure.
Mr Tavella consulted numerous doctors at the request of his solicitors commencing in 2003. Omitting the psychiatric material, the reports include:
·Dr Nash, Surgeon, dated 23 October 2003 (x 3) and 16 September 2008 (x 6) and 24 October 2008 (x 2);
·Dr Matalani, Occupational Physician, dated 11 April 2007;
·Dr Bleasel, Neurosurgeon, dated 1 December 2003 (x 4);
·Dr Costa, Public Health Physician, dated 26 September 2003 (x 5);
·Dr Lowy, Sexual Health Physician, dated 12 May 2004 (x 2);
·Dr Stening, general practitioner, dated 11 April 2003 (x 3).
Mr Tavella has been treated by Dr Wilson, Dr Loefler, Dr Kwok, Dr Teychenne and Dr Papacosta. He has also had physiotherapy treatment from Mr Canning, and treatment from a naturopath, Mr Kelly. Various reports from these practitioners were included in Mr Tavella’s Application.
Mr Tavella was seen by Dr Lorraine Jones, AMS, on 23 June 2005. The Medical Assessment Certificate (‘MAC’) issued subsequently found that Mr Tavella had a 13% WPI in respect of his lumbar spine of which half was deducted for a pre-existing condition, leaving a 7%WPI.as a consequence of the 2002 injury.
He was also seen by Dr Stuart Taylor, AMS, on 21 July 2005. His MAC found 0%WPI in respect of sexual organs. Dr Taylor said:
“In my opinion the injury of 31 May 2002 has not produced the type of loss of use of sexual organs which Mr Tavella described to me…
Mr Tavella describes to me a situation which has been present for some years, in which he is unable to obtain an erection. However, with the taking of the erectogenic drug Cialis, increasing doses produce an increasing erection.
Then movement results in loss of erection.
This is the clinical picture of impotence due to vascular causes, and it is my opinion that the injury …on 31 May 2002 did not produce vascular injuries of the type that would result in this loss of use of his sexual organs.
If indeed Mr Tavella does have the loss of his sexual organs that he described to me, and I have no reason to doubt his story, then it is my view it is due to causes other than the injury of 31 May 2002.”
In his main report of 23 October 2003, Dr Nash opined that Mr Tavella was unfit for his pre-injury duties and that:
“It is unlikely that he will be able to return to security work where he is required to lift weights in excess of 10kg, stand and sit for long periods and deal with unruly patients. He would be unable to walk on uneven surfaces, climb stairs or steps. He is unfit to work in confined spaces, bend or twist frequently.”
In his main report of 16 September 2008, Dr Nash said:
“Mr Tavella complains now that there has been significant deterioration in his condition since assessment. He has not worked for 5 years. He said his back pain is his worse symptom and significantly limits his activities of daily living.
Recent MRI scan shows continuing disability in the lumbo sacral spine with disc protrusions at L3.4, L4.5 extending mainly to the left side and left foramen. An annular tear is seen at L3.5. The focal far left postero lateral disc protrusion at L4.5 and the less pronounced left postero lateral disc protrusion at L3.4 were both evidence (sic) on previous examination. However the associated peripheral high intensity zone of annular tear of L3.4 was a little more conspicuous on the films of 17/08/06.
In my opinion, based on the history, recent investigations and my clinical examination, there has been significant deterioration in Mr Tavella’s condition. On clinical examination there was restriction of movement with pain in his lumbar spine, sluggish ankle reflexes and some wasting of the left thigh and calf. Mr Tavella clearly has Raynauds Phenoma of the upper and lower limbs. This is a constitutional disorder and unrelated to his previous work injuries. He describes the typical colour changes seen in this condition.
He complains of muscle spasm in the neck. He has radiological evidence of a disc protrusion and disc degeneration but in my opinion this is unrelated to the back injury occurring in 2002.
The only treatment that he has found beneficial has been electro-acupuncture.
In my opinion, Mr Tavella’s back injury has been responsible for interference with sexual activity. I do not agree with the opinion of Dr Taylor as he fails to recognise that disc lesions can cause interference with the neurophysiological pathways, every bit as serious as interference by vascular occlusion.
Mr Tavella is unfit to return to his previous work and he is permanently unfit to return to any form of work where he is required to lift weights in excess of 10kg, stand and sit for long periods. He is unfit to work in confined spaces, bend or twist trequently. He is 57 years of age, he has not worked for 5 years and it is likely that he will not return to the work force.
The prognosis is poor and he will continue to have pain and loss of movement in his back.”
Dr Matalani recorded that Mr Tavella stated that his symptoms from the 1999 back injury “resolved within a year from the injury.” He also obtained a history of an injury to the right arm in February 1999 and that “…his neck, arms, back and legs were asymptomatic when he commenced employment with Concord Hospital and prior to his injury in May 2002.”
Dr Matalani referred to the various radiological investigations of Mr Tavella’s back and also noted that:
“MRI of the cervical spine dated 18 September 2004 demonstrated multi level mild spondylotic disease. There were very shallow disc/ridge complexes at C3/4 and C4/5.”
Dr Matalani diagnosed a soft tissue injury and chronic musculoligamentous strain of the neck and back (cervicothoracic and lumbosacral spine) together with an aggravation of a pre-existing disc lesion at L4/5. He said that scans taken subsequent to the 2002 injury demonstrated disc protrusions at L3/4 and L4/5. He said that Mr Tavella was unfit for his pre-injury duties and set out extensive activities to be avoided. He concluded:
“In view of the multitude of his physical and functional restrictions, it will be difficult for Mr Tavella to obtain suitable alternative employment.”
Dr Bleasel in December 2003 opined that:
“As a result of the injuries at Concord Hospital, Mr Tavella suffered from disc damage and nerve root compression with evidence of damage to the L4 left nerve root. His capacity for work has been greatly reduced as a result of this damage.”
Dr Bleasel did not record any history of neck symptoms.
Dr Teychenne first saw Mr Tavella on 15 July 2004 at the request of Dr Papacosta. He wrote a detailed report setting out his findings as to the pathology in the lumbar spine. Then in a report dated 11 August 2004 he said:
“Mr Tavella notes numbness extending down the medial aspect of the left arm from the left side of the neck…associated with tingling in the left 3rd and 4th fingers.”
In a report dated 22 September 2004, Dr Teychenne said:
“Mr Tavella notes persistent pain extending from the neck across the left supraclavicular region and down the lateral aspect of the left upper arm…I would treat him as a mild left cervical radiculopathy and a left carpal tunnel syndrome”
There were no further reports from Dr Teychenne, and the cause of the neck and left arm complaints was not recorded.
Dr Costa in September 2003 recorded that Mr Tavella said that he was off work for only half a day following his 1999 back injury and that this injury resolved. He concluded that Mr Tavella was unfit for work at that time and may well come to back surgery. He felt that he was permanently unfit for “heavy lifting / repetitive bending, prolonged sitting / standing, repetitive up and down steps or stairs or climbing ladders, or work on slippery or uneven surfaces, propping on the legs or repetitive squatting, kneeling, crouching etc.”
Both Dr Bleasel and Dr Costa provided assessments of permanent impairment of the back.
Dr Lowy examined Mr Tavella on 12 May 2004. In a report of the same date, he said:
“The examination did not reveal any obvious vascular, neurological or hormonal deficit.
There is no evidence that he has damaged the erectile mechanism. The sexual difficulties have arisen from a combination of the effects of chronic pain, depression and loss of confidence. I am of the opinion that Mr Tavella’s work injury has substantially contributed to the sexual dysfunction.”
Dr Lowy assessed “permanent loss of use of sexual organs at 20%.”
In a report dated 21 October 2008, Dr Papacosta set out details of scientific studies as to the use of electro-acupuncture (also known as Percutaneous electrical nerve stimulation). He confirmed that this treatment was confined to Mr Tavella’s lower back then said:
“The World Health Organisation, the National Institutes of Health, the American Pain Society, the International Association for the Study of Pain all state that Acupuncture is an accepted treatment for Chronic Pain.
In Summary, as his nominated treating doctor, I have advised Mr Tavella to continue with his ‘reasonably necessary’ medications as prescribed and to continue with the ‘reasonably necessary’ acupuncture as clinically indicated.”
In one of his reports dated 16 September 2008, Dr Nash commented:
“Mr Tavella states that the treatment of electro-acupuncture that he has been administered in the past by Dr Papacosta is the only treatment that helps him. He is now having this once weekly and it is probably reasonable that he continues with it on a two weekly basis.”
The Respondent’s Evidence
There was extensive evidence from the Respondent both of a psychiatric nature and also in relation to the earlier proceedings in this case and the claim in relation to the 1999 injury with T & M Industries.
Relevant material included in the Reply filed on 2 March 2009 were the following:
1. Reports from Dr Lim, Occupational Physician, dated 14 June 2007 and 21 January 2009;
2. Report from Andrew Leaver, Physiotherapy Consultant, dated 17 October 2006
3. Reports from Dr Kafataris, Injury Management Consultant, dated 20 March 2007 and 31 March 2007.
The Reply filed in the earlier proceedings (WCC2865-05) included the following:
1. Report of Dr Bodel, Orthopaedic Surgeon, dated 7 November 2003;
2. 2 Reports of Dr Sekel, Consultant in Occupational Medicine, both dated 20 November 2003;
3. Report of Dr Kuo, Occupational Physician, dated 29 January 2003;
4. 2 Reports of Dr Smith, Surgeon, both dated 23 April 2004;
5. 2 Reports of Dr Pryor, Vocational Psychologist, dated 16 and 23 December 2003;
6. Report of Dr Zeman, Consultant in Rehabilitation Medicine, dated 16 December 2003;
7. 2 Reports prepared by Ms Christine Antosz, Physiotherapist, a Functional Capacity Report dated 17 December 2003 and a “Job Match Report” dated 23 December 2003;
8. An incomplete “Workplace Assessment “ report from Rehabilitation Concepts Pty Ltd dated 16 April 2004;
9. A Report of Dr Williamson, Practitioner in Musculoskeletal Medicine, addressed to Mr Tavella’s solicitors, dated 20 September 1999;
10. 2 Reports of Dr Horsley, Occupational Physician, also addressed to Mr Tavella’s solicitors, both dated 3 March 2000;
11. Report of Dr Taylor, Surgeon, addressed to Mr Tavella’s solicitors, dated 13 July 2000.
In his report of 14 June 2007, Dr Lim reported that Mr Tavella said that he took more than a year to recover from the 1999 back injury, but he had no symptoms from this injury at the time he commenced employment with Concord. He also said that he injured his right arm in another incident in 1999 but recovered from that injury.
Dr Lim also noted that Mr Tavella had consulted Dr Teychenne in September 2004 about pain in his neck and left arm. He had an MRI of the cervical spine in on 18 September 2004 which showed degenerative changes which Dr Teychenne said explained the symptoms in the neck and left arm. Dr Lim recorded Mr Tavella’s current symptoms as including:
· constant lower back pain…intermittent pain in his right posterior pelvic region;
· electric shocks in his left leg, once a day or a few times a day;
· spasms in his neck, interscapular region and both scapular regions’
· changes in colour in his fingers and legs;
· tingling in his legs, genitals and all over his body.
Dr Lim diagnosed “lumbar spondylosis and abnormal illness behaviour.” In addition, Dr Lim concluded that Mr Tavella had cervical spondylosis and Raynaud’s Phenomeenon. He felt that he was fit for suitable duties full-time since his injury, assessed at 7%WPI, resulted in “moderate but not severe disability.” Dr Lim also said that:
“However, the claimant has a chronic pain disorder with gross abnormal illness behaviour. The situation is not helped with the NTD advocating indefinite passive physical therapies and ongoing certification of total work incapacity.”
In his report of 21 January 2009, Dr Lim accepted the findings of the AMS although he was not in agreement with the assessment. He did not re-examine Mr Tavella but concluded:
“I am of the opinion from my clinical findings that ongoing chiropractic treatment is not appropriate…Ongoing chiropractic treatment continues to be prescribed by the treating doctor because the claimant continues to complain to (sic) pain and exhibit abnormal illness behaviour. The treatment of the manifestations of abnormal illness behaviour with physical therapy affirms the abnormal illness behaviour, reinforcing it.”
Mr Leaver, in his report of 17 October 2006, was of a similar view. Mr Tavella reported that he had undergone physiotherapy treatment with John Canning, and massage treatment with naturopath Peter Kelly. He said that :” …he has tried a variety of alternative therapies including acupuncture, laser acupuncture, and Reiki massage, all of which he described as ineffective ‘scams.’” No mention was made of the treatment provided by Dr Papacosta. Mr Tavella declined any physical examination but following assessment, Mr Leaver concluded:
“Mr Tavella presented with complaints of back and lower limb pain and diffuse associated dysaesthetic sensations which he attributes to injuries sustained at work on 31.05.02.
There are features of chronic pain syndrome including somatic focus, and disease conviction. I do not have a clear picture of functional capacity or disability level.
Mr Tavella seemed evasive during the interview and would not provide information about his current physiotherapy treatment, current activity levels or previous work history. There appeared an element of paranoia in his discussion of how his insurer has managed his case and in allegations that his radiological reports have been misreported.
Passive therapies such as massage and traction have been clearly ineffective to date. Provision of regular symptom focussed treatment in the circumstance would have a net negative effect in terms of reinforcing symptom focus and passivity.
Future physiotherapy management was discussed with John Canning on 17.10.06. Mr Canning confirmed that he had raised concerns about Mr Tavella’s lack of progress many months ago. Mr Canning reported that he had attempted to engage Mr Tavella in active conditioning exercises and to minimise the use of passive palliative therapies without success.
Ongoing physiotherapy treatment and other passive palliative therapies are not considered reasonably necessary…this approach does more harm than good. There is no evidence of positive outcome from physiotherapy or massage therapy to date to justify ongoing treatment.”
Dr Kafataris also commented on this issue in his report of 31 March 2007. It appears that Dr Kafataris had had lengthy discussions with Dr Papacosta on 20 March 2007 who “…had recommended ongoing passive therapy e.g. physiotherapy, chiropractic and massage.” Dr Kafataris said that Dr Papacosta had cited a number of determinations by Commission arbitrators “…that had accepted that passive therapy which gave temporary relief of symptoms constituted ‘reasonable and necessary treatment.’” Dr Kafataris said:
“The NTD remained of the opinion that the worker required passive physiotherapy and massage therapy dispute (sic) the lack of measurable improvements. He stated that he would continue to be sighting (sic) the determinations of the arbitrators in determining what was reasonably necessary treatment. I stated that I was unable to support this course of treatment given the lack of benefit that it had on his fitness for work.”
The reports attached to the Reply in the 2005 proceedings were in general supportive of Mr Tavella’s claim that the injury at Concord in 2002 was causative of some incapacity, although Dr Bodel, for example, opined that “…in part his ongoing pathology relates to his previous injury in 1999…” Dr Cher-Sang Kuo in January 2003 noted “slight muscle wasting of the left quadriceps” and assessed him as suffering a 10%WPI. Dr Smith in April 2004 noted that “neck movements were full and complete” and concluded that “…the worker’s condition is much better than alleged.” In Dr Smith’s opinion, there was “nothing wrong” with Mr Tavella and he was fit for work, but it is fair to say that Dr Smith appeared to have an incorrect history as to the date of the injury.
There were a number of vocational assessment reports included in that Reply. Dr Pryor, for example, in December 2003 said that Mr Tavella was “extremely uncooperative” and felt that he was fit for a wide range of jobs including security work (monitoring only), library assistant, mail order clerk and museum technician. Dr Zeman also in December 2003 felt that he was fit for his pre-injury work, whereas Ms Antosz felt that Mr Tavella was fit for semi-sedentary and light manual work. Her assessment was made more difficult by her observation that “Mr Tavella’s self limiting behaviour during the assessment resulted in his maximal physical capability levels not being observed.”
Drs Williamson, Horsley and W.G.Taylor prepared reports for Mr Tavella’s earlier claim against T&M Industries. In September 1999 Dr Williamson opined that the back injury on 15 January 1999 was responsible for ongoing pain in the lower back radiating into the left leg. He assessed a 20% impairment of the back, 10% of the left leg, and 10% of the right arm due to an injury on 1 February 1999. In March 2000, Dr Horsley opined that Mr Tavella had sustained a disc protrusion at L4/5 in the January 1999 incident and that he had significant restrictions on his work capacity. She said that his current job as a security guard with Paddington Security involving “…sitting in an office and writing number plates of passing trucks and cars” was appropriate. She assessed a 25% permanent impairment of the back, 12% of the left leg and 12% of the right arm.
Dr W.G.Taylor reported in July 2000 that Mr Tavella:
“has damaged the L3/4 and L4/5 discs of his lumbar spine. Clinically he seems to have improved on examination of his back.
However undoubtedly the back is still sore and has recurrent pain in its lower part referred to some extent to the left leg.
He is unfit to return to the work he was doing…”
Dr Taylor also thought that Mr Tavella had an acute lateral epicondylitis of the right elbow, and the prognosis for improvement was “somewhat guarded.” He assessed 15% permanent impairment of the back, 12% of the left leg, and 15% of the right arm.
The parties agreed at the hearing that probable earnings but for injury were $900.00 per week. Actual earnings at the time of injury were said by the Respondent to be $715.62.
THE ARBITRATOR’S FINDINGS AND REASONS
In the ‘Amended Statement of Reasons’ dated 12 May 2009, the Arbitrator identified the issues to be determined as follows:
“1.1Has there been an increased (sic) deterioration in the low back injury, previously assessed for Section 60 purposes at 7%, and now claimed at 9%.
1.2Is the Applicant entitled to claim for loss of sexual function as a result of an injury sustained during the course of his employment with the Respondent.
1.3Has the Applicant sustained an injury in the nature of an annular fissula(sic).
1.4If the answer to any 1.1, 1.2 or 1.3 above is yes, the matter will need to be referred off to an AMS.
1.5Whether the Applicant is entitled to an increase in weekly benefits which have previously been paid to date on a voluntary basis at the rate of $100.00 per week.
1.6If so, how much is the Applicant entitled (sic) and from what date.
1.7Is the Applicant entitled to medical and related expenses under Section 60 of the 1987 Act.
1.8If so, how much of the amount claimed of some $15,000.00 is reasonable and necessary.”
After setting out the findings sought by both parties, the history of the proceedings, and a summary of the submissions, the Arbitrator set out his findings commencing at [32] as follows:
“Section 66 Entitlements
32. With regard to the deterioration in respect of the lumbar spine, I am satisfied… that it is appropriate that this matter be referred off to an AMS…At a prima facie level, I am satisfied there are grounds to support a deterioration.
Nervous System (Sexual Organs)
33. In my consideration of this claim, my starting point must be the AMS’ previous Section 325 Certificate where Dr Taylor found a 0% impairment.
34. Whilst I accept…that in applying Haroun v Rail corporation New South Wales & Ors [2008] NSWCA 192, Dr Taylor’s reasoning on injury is not conclusive, for me to accept that the matter should be referred off to an AMS at this point in time, I must be satisfied that there has been a deterioration since the previous finding by the AMS.
35. As I understand it, (Counsel for Mr Tavella’s) submissions argue that Dr Taylor erred in his consideration of the causal link (or lack thereof) between the work situation, the undoubted back injury sustained, and the subsequent development of the sexual functioning difficulties.
36. When one reads carefully Dr Nash’s comments it is in principle a disagreement with the reasoning of Dr Taylor’s assessment at 0%. Dr Nash suggests that the symptoms observed by Dr Taylor can be caused by vascular disease, but can also occur following a major back injury. Dr Nash is of the opinion that the neuropsychology of sexual function, it being complex, can similarly be explained in terms of the worker’s back injury which has been responsible for interference with sexual activity…
37. It is not my intention to enter into debate as to which is the more probable cause for what does not appear to be controversial (namely the Applicant’s interference with sexual activity). I do not need to determine whether sexual dysfunction is as a result of vascular collusion as the AMS has proposed, or the disc lesion causing interference with the neurophysiological pathways, as Dr Nash proposes.
38. What is, however, abundantly clear from Dr Nash’s report is that he is not proposing that there has been a deterioration in the Applicant’s sexual functioning since the AMS Certificate of Dr Taylor. That being the case, I am not satisfied that there is any basis to overturn the Section 325 Certificate and accordingly I find that the Applicant’s claim for an injury to the nervous system (sexual organs) is not as a result of any deterioration since the AMS Certificate, and as such, there is no basis for that matter to be referred off to an AMS.”
The Arbitrator accepted that there was evidence to support the claim that, as a consequence of taking certain medication, Mr Tavella sustained an anal fissure (incorrectly referred to by the Arbitrator as an “annular fissula” or “annular fissular”). That claim he also directed be referred to an AMS.
In relation to the claim for weekly benefits, the Arbitrator commenced his findings and reasons at [42]. He noted the parties’ agreement that probable earnings, but for injury, were $900.00 per week. He noted Mr Tavella’s statements, and said at [48] that “Nothing again is elaborated as to what efforts he has made to try and find suitable work.” He referred to Dr Nash’s opinion as to incapacity, and at [53] said: “It would appear to me that there is incapacity and as Dr Nash has predicated there has been a deterioration, this is likely to have increased the incapacity.”
At [54] he stated:
“(Counsel for Mr Tavella) contends that the period from which I should apply the review is from 21 June 2004. However, I hold a Rehabilitation Concepts report from the Applicant which suggests that at that period of time there were a number of transferable skills that the Applicant had. To my mind, I am not satisfied that the Applicant has established any entitlement up until the present time, when the Application was brought. I am of the view that the appropriate period of time in which to consider the application of the Mitchell test is from now onwards and that up to the present day, I accept that the voluntary payments ($100.00 per week) fairly reflects the loss that the worker has had…Whilst there has been a deterioration of the back, it is apparent that Mr Tavella has made no efforts to try and find work and accordingly, I am not satisfied that to the present time there has been a demonstrated incapacity for work, so as to justify an award under Section 40.”
The Arbitrator found at [57] that the amount Mr Tavella would be able to earn, based on suitable occupations identified in the Rehabilitation Concepts report, was $600.00 per week. The difference then was $300.00 per week. He continued at [59]:
“59. I am then obliged to consider the discretionary factors. (Counsel for Mr Tavella) has indicated that the discretionary factors ought to provide no discount. However, I do not accept that submission and am of the view that there are discretionary factors that need to be brought in mind, as (Counsel for the Respondent) has drawn to my attention. These include the neck problems which are unrelated to this accident but which nonetheless have an effect on the worker’s capacity for work and the Raynard’s (sic) symptoms. Further, there is a psychological condition, which whilst clearly having an impact on the worker, is not the subject of these proceedings.
60. Making due allowance for these items I am of the view that it is appropriate to discount the $300.00 figure by 50% for discretionary reasons.
61. Accordingly, in relation to the weekly benefits claim I do not propose to make any allowance above the voluntary payments to date but I do determine that from the date of this award thenceforth, the Applicant is entitled to weekly benefits at the rate of $150.00 per week.”
The Arbitrator dealt with the claim for Section 60 expenses at [62], stating as follows:
“Again, this was a controversial and strenuously disputed claim. (Counsel for the Respondent’s) submissions to my mind have some substance and I do consider that there appears to be a significant over servicing of Mr Tavella by his treating General Practitioner. I am also of the view that whilst it is reasonable for Mr Tavella to have electro acupuncture treatments in lieu of more conventional pain management therapy (he being unable to take pain medication due to the annular fissular (sic)) nonetheless I am of the view that part of the treatment relates to the neck pathology and the Raynard (sic) symptoms. I propose to allow a half of the treatments by Dr Papacosta as referable to the work related injury. I order that the Respondent pay half of the total amount of the total number of claims that have been incurred to date, payable at the schedule rate.”
THE SUBMISSIONS AND DISCUSSION
The Weekly Payments Award
I accept Mr Tavella’s submission that there are clear errors in some of the findings made by the Arbitrator, in particular, his finding at [54] that up to the date of his award, there was no “demonstrated incapacity for work, so as to justify an award under Section 40.” However, this I regard as an obvious error as it is clearly inconsistent with his findings at [53] that there is“ incapacity” which has likely increased due to the deterioration of his back condition. It is also inconsistent with earlier findings as to incapacity and the voluntary payments made by the Respondent under Section 40 to date.
The principle issue in dispute is the Arbitrator’s exercise of his discretion under Section 40 of the 1987 Act, and the commencement date of the award. Mr Tavellla does not appear to take issue with the Arbitrator’s primary finding that his ability to earn was $600.00 per week. This approach is correct, since that finding was clearly consistent with the evidence before him, particularly the vocational assessment reports.
Dealing firstly with the commencement date of the award, I note that Mr Tavella consented to an award in his favour at the rate of $100.00 per week on 23 January 2006. In those circumstances, I do not accept Mr Tavella’s submission that the award sought in the present proceedings should date from 21 June 2004. Most of the evidence relied upon by Mr Tavella pre-dates the consent award, and there is little to support his claim for a variation in the award prior to the filing of his present Application.
Having said that, there was no evidence brought by the Respondent to challenge Mr Tavella’s claim that his condition had deteriorated since the previous consent award. His statement to this effect dated 31 October 2008 is supported by the opinion of Dr Nash dated 16 September 2008.
No explanation was provided by the Arbitrator for his decision to increase the award as from the date of his determination. If it was made on the basis of his statement at [54] that “I am not satisfied that to the present time there has been a demonstrated incapacity for work, so as to justify an award under Section 40” then it is clearly wrong for the reasons stated.
In my view, the correct approach is to date the award from the date of the Application, namely 9 February 2009.
Turning now to the quantum of the award and the exercise of discretion, there is no doubt that Section 40(1) provides a broad discretion to make an award in an amount considered “proper in the circumstances of the case.” (See Australian Wire Industries Pty Ltd vNicholson (1985) 1 NSWCCR 50).
I am satisfied that the Arbitrator adequately set out the basis for the exercise of his discretion ( Kesen v Luke Singer Pty Ltd (1989) 18 NSWLR 566) but in my view it was in some respects incorrect.
The Arbitrator rejected the submission by the Respondent that Mr Tavella had effectively taken himself out of the labour market akin to a pregnant worker or one in prison. (Myer Sydney Ltd v Buckley [1980] WCR 319 and Stanlund v The Mid-Coast MeatCompany Pty Ltd [1999] 19 NSWCCR 91).
The Arbitrator ought similarly have rejected the Respondent’s submission that Raynauds Phenomenon or Raynauds Disease (incorrectly referred to by the Arbitrator as “Raynard’s symptoms”) had an impact on Mr Tavella’s capacity for work, particularly since the Respondent brought no evidence whatsoever to support such an assertion. That condition is a disorder of small blood vessels causing poor blood flow resulting in skin colour changes. A number of medical specialists noted it in Mr Tavella: none considered that it had any impact on Mr Tavella’s capacity for work.
Having said that, there was ample evidence to support the Arbitrator’s findings that Mr Tavella’s complaints of significant neck and arm pain, together with his “psychological condition” were proper factors to take into consideration in assessing any award.
I am also of the view that his prior injuries to the back and right arm with T&M Industries for which he was previously compensated were factors to take into consideration, notwithstanding Mr Tavella’s determined assertion in more recent times that he “recovered” from his back injury very quickly. That assertion is not supported by the evidence, particularly the reports of Drs Williamson, Horsley and W.G.Taylor.
In these circumstances, I am satisfied that the Arbitrator’s reduction of the award by 50% was appropriate although not entirely for the reasons he gave.
The Section 60 Expenses
Again, in my view, the result in relation to the accounts of Dr Papacosta was correct, but for the wrong reasons. There was simply no evidence that Mr Tavella received electro acupuncture treatment for either his neck or his Raynauds Phenomen. Indeed, in his report dated 21 October 2008, Dr Papacosta confirmed that his treatment was confined to the back only, and there was no evidence to the contrary.
There was detailed evidence from the Respondent that such treatment was neither reasonable nor necessary, as were other forms of passive treatment. In those circumstances, it was appropriate for the Arbitrator to consider the whole of the evidence on this issue.
Mr Tavella cites the decisions of Rose v Health Commission (NSW) 1986 NSWCC2 and Pelama Pty Ltd v Blake 1988 NSWCC6 in support of his claim. These decisions deal primarily with the issue of whether the treatment provided was “reasonably necessary.” As the Respondent rightly points out, the principle issue for determination in the present case was not so much the treatment itself but its frequency.
Given Mr Tavella’s documented difficulties with medication, the Arbitrator’s primary finding that the electro acupuncture treatment was reasonable was correct.
As to its frequency, it appears from Dr Papacosta’s account that treatment was administered sometimes weekly, and sometimes twice weekly. I note that Dr Nash felt that it was “reasonable” that Mr Tavella continue this treatment on a “two weekly basis.”
In my view, that opinion is persuasive. In those circumstances, the Arbitrator’s orders discounting Dr Papacosta’s account to date by half seems appropriate, and I see no basis upon which alter his decision.
Regrettably, the Arbitrator does not appear to have dealt with other claims for outstanding Section 60 expenses which have been set out in some detail as annexures to Mr Tavella’s Appeal. The Respondent has not made any submissions on this issue so that it is unclear whether those expenses remain outstanding or have been rejected. They include pharmacy receipts, radiological accounts and travel expenses.
In the circumstances, failing any agreement between the parties, the matter will need to be remitted to the Arbitrator at first instance for determination of any outstanding expenses.
The Section 66 Claim – Sexual Organs
Mr Tavella’s submissions on this issue are scant indeed. He simply says that the Arbitrator “made the wrong decision in refusing to refer the Applicant’s claim for injury to the nervous system (sexual organs) off to the AMS” because he claims to have suffered a deterioration in sexual functioning.
The Respondent submits that Mr Tavella’s claim amounts to no more than a “second bite of the cherry rather than a genuine claim for further impairment as a result of deterioration.”
To determine if this is indeed the case is not an easy task, and requires careful scrutiny of all the evidence. The Arbitrator based his determination on the basis that Dr Nash “was not proposing that there has been a deterioration in the Applicant’s sexual functioning since the AMS Certificate of Dr Taylor.” That being the case, he declined to refer the matter for further assessment. The issue is whether that interpretation of the evidence was correct.
There is certainly a basis for the Arbitrator’s comments that Dr Nash’s views simply reflect his disagreement with the opinion of Dr Taylor. Dr Nash had not previously commented upon any loss of sexual function in his earlier report of 23 October 2003. Indeed, no complaints of any sexual dysfunction were apparently made by Mr Tavella to him at that time. Dr Lowy however in May 2004 had assessed him as suffering from 20% permanent loss of use of sexual organs “substantially” as a result of his work injury at Concord. In 2008, Dr Nash assessed 40% permanent loss of use of sexual organs, and provided detailed reasons for his opinion. No evidence was brought by the Respondent on this claim.
The onus of establishing whether or not there has been a deterioration lies with Mr Tavella. Prima facie, if there is plausible evidence of deterioration, he is entitled to have it assessed. (See Gane v Dubbo City Council [2007] NSWWCCPD 140).
I accept that, on the face of it, Dr Nash’s report does not speak of a deterioration in sexual functioning. Moreover, the AMS, Dr Taylor, had previously assessed 0% loss. That assessment was not the subject of appeal and must stand. However, Dr Lowy’s report, read with that of Dr Nash, would suggest some deterioration. No reference was made by the Arbitrator to the report of Dr Lowy.
The Arbitrator accepted that the condition of Mr Tavella’s back had deteriorated. It seems to me that one flows from the other: if there is plausible evidence that the back has deteriorated and impaired sexual function follows, that is sufficient for further assessment to take place. I accept that the situation would be different had Mr Tavella merely complained of reduced sexual functioning for no apparent reason. Considering all of the evidence in context, it seems to me certainly arguable that there is a “genuine claim” for a deterioration in sexual function consequent upon a deterioration of the back condition such that Mr Tavella is entitled to have that claim assessed.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemmler [2007] NSWCA 249, I have come to the conclusion that the Arbitrator erred in refusing to refer the claim for Nervous System (Sexual Organs) to an AMS for assessment. His ultimate findings as to the quantum of the weekly payments award and payment of section 60 expenses to Dr Papacosta were correct, but the basis for his determination was flawed for the reasons stated.
DECISION
Paragraph 1 of the Arbitrator’s Amended Certificate of Determination dated 12 May 2009 is confirmed save for the further claim for nervous system (sexual organs). That claim is to be referred to the Registrar of the Commission for assessment by an Approved Medical Specialist. That claim is to be reviewed as to any deterioration since the previous AMS Certificate. The documents to be sent to the AMS are the Application, Reply, relevant medical material from the Applicant and Respondent and the Applicant’s statements.
Paragraph 2 is revoked and the following decision made in its place:
“(1). Award in favour of the Applicant pursuant to Section 40 of the Workers Compensation Act 1987 at the rate of $150.00 per week from 9 February 2009 to date and continuing.
(2). Credit to the Respondent for any payments made to date.”
Paragraphs 3 and 4 are confirmed.
The claim for outstanding Section 60 expenses (other than those of Dr Papacosta) is to be referred to the Arbitrator at first instance for determination, failing any agreement between the parties.”
COSTS
Mr Tavella has been partially successful on appeal. The appropriate order is that the Respondent pay the Appellant’s costs of the appeal which I assess at $800.00 inclusive of GST.
Deborah Moore
Acting Deputy President
28 August 2009
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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