Thompson v Coffs Harbour City Council
[2009] NSWWCCPD 94
•7 August 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Thompson v Coffs Harbour City Council [2009] NSWWCCPD 94 | |||||
| APPELLANT: | Brian Thompson | |||||
| RESPONDENT: | Coffs Harbour City Council | |||||
| FIRST INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | |||||
| SECOND INSURER: | StateCover Mutual Ltd | |||||
| FILE NUMBER: | A1-10390/08 | |||||
| ARBITRATOR: | Ms F Robinson | |||||
| DATE OF ARBITRATOR’S DECISION: | 22 April 2009 | |||||
| DATE OF APPEAL DECISION: | 7 August 2009 | |||||
| SUBJECT MATTER OF DECISION: | Particulars of claim; disease; nature of injury; sections 4, 15 and 16 of the Workers Compensation Act 1987 | |||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | White Barnes | ||||
| First Insurer: Second Insurer: | Ellison Tillyard Callanan Hicksons | |||||
| ORDERS MADE ON APPEAL: | For the reasons given in this decision, the Arbitrator’s determination of 22 April 2009 is confirmed. | |||||
| Each party is to pay his or its own costs of the appeal. | ||||||
BACKGROUND
The appellant worker, Mr Thompson, started work with Coffs Harbour City Council (the Council) as a labourer in April 1984. His duties were heavy and physical. He injured his left elbow while performing his normal duties at work in the 1980s and underwent surgery to that elbow at the hands of Dr Jones. He also injured both his elbows and shoulders as a result of lifting or using jackhammers, though the exact date is unclear.
On 11 November 2003 Mr Thompson’s solicitors, White Barnes, claimed lump sum compensation in respect of the condition of his arms as a result of the nature and conditions of his employment from April 1994. That claim was settled and the settlement registered under section 66A of the Workers Compensation Act 1987 (‘the 1987 Act’) and dated 21 January 2004 (‘the section 66A Agreement’). The section 66A Agreement records that the claim was duly made on 11 November 2003 and that the date of injury was 28 April 1994. It provided for the payment of lump sum compensation under the ‘Table of Disabilities’ in respect of a 20 per cent permanent loss of efficient use of the right arm at or above the elbow and a 10 per cent permanent loss of efficient use of the left arm at or above the elbow together with compensation for pain and suffering. Mr Thompson and his solicitor, Mr O’Halloran, signed the agreement on 28 January 2004. A representative from “Allianz Australia”, Tracey Wyse, was also named in the document though she did not sign it.
Mr Thompson remained at work with the Council and in either 1999 or 2001 (the evidence is in conflict) his position was changed to that of a works supervisor in the engineering department, which he continued until he resigned on 25 July 2008. He then worked for a business known as Naric Civil North for one week in August 2008 and for Peter Rowan Pty Ltd (‘Peter Rowan’) from August 2008 until mid January 2009.
By letter dated 13 October 2008, Mr O’Halloran notified the Council that Mr Thompson claimed weekly compensation. The letter attached a medical certificate from Dr Ellis, Mr Thompson’s general practitioner at Coffs Harbour, dated 2 October 2008 that declared Mr Thompson to be unfit for work from 25 September 2008 until 13 October 2008 as a result of “severe osteoarthrition [sic, osteoarthritis] – esp. shoulders, elbows, hips, R thumb.” The letter did not identify Mr Thompson’s alleged injury, but referred to “various injuries he has sustained in the course of his employment with the Council” and to the fact that he had been compensated in the past for permanent impairments affecting his right and left arms and for facial disfigurement arising from skin cancers.
The claim for weekly compensation was not accepted and on 24 December 2008 Mr Thompson registered an Application to Resolve a Dispute (‘the Application’) in the Commission claiming weekly compensation in the sum of $980.00 from 10 July 2008 (later amended to 15 January 2009) to date. Under “injury details”, the Application, as amended at the arbitration, identified the date of injury as “11 November 2003 and on or about 25 July 2008”. The injury was described as having occurred as follows:
“Nature and conditions of the applicant’s employment with the respondent requiring the carrying out of heavy physical work placing effort and strain upon arms, shoulders, back and knees.”
The Council was insured by Allianz Australia Workers Compensation (NSW) Ltd (‘Allianz’) from June 1983 until 30 June 2004 and by StateCover Mutual Ltd (‘StateCover’) from 1 July 2004 to date. Each insurer filed a separate Reply disputing liability. Allianz denied liability on the grounds that any injury suffered by Mr Thompson was a disease of such a nature as to be contracted by a gradual process within the meaning of section 15 of the 1987 Act, or in the alternative, was an aggravation, acceleration, exacerbation or deterioration of a disease within the meaning of section 16 of the 1987 Act. StateCover’s Reply lists 24 separate issues denying injury, incapacity, notice and every other issue that might possibly arise in the legislation. StateCover’s solicitors, Hicksons, are put on notice that Replies of this kind are not acceptable in the Commission. Respondents and insurers are required to properly identify the issues that are genuinely in dispute. A blanket denial of every conceivable issue is inappropriate and may well result in a costs sanction if a worker is put to proof on issues that are not genuinely in dispute, even though he or she does not recover the relief sought.
The matter was listed for conciliation and arbitration on 24 March 2009. Mr O’Halloran appeared for the worker, Mr Egan, of counsel, appeared for Allianz, and Mr Lichtenberger, of counsel, appeared for StateCover. The matter proceeded with lengthy oral submissions, but the Arbitrator heard no oral evidence. Mr Egan submitted that the claim was “confined to a period from 2003” (T6.34) and that, in any event, Mr Thompson’s injury was a disease and compensation was payable by the last employer to employ Mr Thompson in employment to the nature of which the disease, or any aggravation of the disease, was due. That employer, so it was argued, was Peter Rowan. Mr O’Halloran submitted that he was permitted to rely on the “nature and conditions of employment” up to and after November 2003 (T36.35). Without resolving this conflict about the state of the pleadings, the Arbitrator reserved her decision.
In her Statement of Reasons (‘Reasons’) delivered on 22 April 2009, the Arbitrator found that Mr Thompson’s condition was a disease to which section 16 of the 1987 Act applied and, as he had been employed by Peter Rowan in work that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease after leaving the Council, the Council was not the last employer to employ him in employment of that kind. She therefore made an award in favour of the Council.
The Commission issued a Certificate of Determination on 22 April 2009 in the following terms:
“1. An Award for the Respondent in respect of the claim for weekly benefits.
2. No order as to costs.”
By an appeal filed on 19 May 2009, Mr Thompson seeks leave to appeal the Arbitrator’s determination.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
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.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Mr Thompson seeks to tender, as fresh or additional evidence on appeal, a copy of a letter from his solicitor to the Council dated 11 November 2003 particularising the claim for lump sum compensation he made at that time. Neither insurer has objected to the tender of the letter. I can see no prejudice to the insurers if the letter is admitted. Given the history of the matter at arbitration and the uncertainty about the nature of the claim particularised, it is in the interests of justice that it be admitted on appeal.
THE EVIDENCE
Mr Thompson’s evidence
Mr Thompson’s evidence is set out in four statements, dated 18 March 2003, 28 August 2008, 13 November 2008, and 15 January 2009. In his first statement, Mr Thompson confirms that he started work with the Council in April 1984 as a labourer involved in road works, sewerage works and construction generally. The work involved digging, using crowbars and shovels, concreting, working with jackhammers, vibrators and “whacker packers”. He states that he continued this heavy work until about 1999 when, presumably, he became a works supervisor.
As a result of his labouring duties, Mr Thompson injured his left elbow sometime in the 1980s and underwent surgery to that elbow at the hands of Dr Jones at Coffs Harbour. He states that he also injured “both arms by way of lifting jackhammers” and that he consulted Dr Hefner, a surgeon at Coffs Harbour, in respect of his right arm. No date is given in respect of these injuries, which appear to relate to both elbows and both shoulders. As at August 2003, Mr Thompson was performing his normal duties as a supervisor, but as he felt obliged to “help out on the job” he was still “doing a fair amount of heavy work” which caused great discomfort in his arms.
In his 28 August 2008 statement, Mr Thompson said that he was having “increasing difficulty in coping” with his work as a result of his “work related injuries”, however, as a supervisor he was not required to do a great deal of physical work. As a result, he was able to continue in his supervisory role, but would not have been able to carry out heavy work. He said that his shoulders, hips, knees and left wrist were all beginning to present significant problems for him, as well as further skin cancers.
Because of an allegation that he had inappropriately authorised certain work to be performed, he decided to resign from the Council on 25 July 2008. He said that he had not worked since, and added:
“I am now sixty years of age and whilst I am aware that there is work available for me in my area of expertise I find that my physical restrictions are going to create difficulty for me in obtaining suitable work.”
In a handwritten note attached to his statement of 28 August 2008, Mr Thompson added that he had been forced to take on “casual work”.
In respect of his duties with the Council, he stated that he had performed very heavy work with the Council over the previous twenty-four years, but in more recent years the nature of his duties did not require him to exert any great physical effort. He concluded by saying that he felt he was economically at a severe disadvantage.
In his statement of 13 November 2008, Mr Thompson said that the only work he had performed in the previous few months was casual work driving a water cart and doing some general duties around the yard where Peter Rowan houses his earthmoving equipment. He said that in those months he would have totalled approximately one week’s work made up of odd days for which he was paid $25.00 per hour.
He added:
“By reason of the condition of my shoulders, both knees, both hips, both right wrist and left elbow I find that doing a day’s work even at a fairly moderate level knocks me around to such an extent that I have to take a day or two afterwards to recover. There is simply no way in which I could be working a full 5 day a week job doing even the relatively light duties I am performing.”
In his last statement, Mr Thompson said that he was still working for Peter Rowan but was finding it difficult to remain at work. In the four to six weeks leading up to 15 January 2009, he claims to have averaged only four days work per week. The work required him to drive a water truck fitted with a good seat and automatic “functions”. The work was not hard or difficult or physically demanding and Mr Thompson only worked for about four hours per day, though he was employed for between 8 and 10 hours a day. There had been no real change in his fitness level since he left the Council but he felt that the conditions of his elbows, knees, back, neck, ankles and wrists were “too much” for him to be working at all. Though Dr Ellis had given him a certificate for restricted work until 9 February 2009, Mr Thompson felt that he would have to cease work in the near future as his level of pain and discomfort was such that he was having difficulty sleeping and he was depressed. The statement concludes with a hand written sentence as follows, “I wish to advise I have ceased work altogether as from today the 15th January 2009.”
Medical evidence
Mr Thompson relies on two reports from Dr Black, general practitioner and medico-legal consultant, dated 22 October 2003 and 10 November 2008. In his first report, Dr Black recorded that Mr Thompson developed pain in his left elbow while shovelling at work in about 1986. The pain became worse and he underwent surgery at the hands of Dr Jones and his elbow fully recovered. In about 1989, Mr Thompson experienced pain in his left shoulder in the course of his employment and had difficulty lifting his left arm above shoulder level. He received cortisone injections from Dr Hefner, surgeon. In about 1993 Mr Thompson was working in the Council yard when he developed pain in his right elbow and shoulder.
As a result of his arm problems, Mr Thompson was unable to throw a stone or play darts with his right hand, or use a hammer properly or cut wire with pliers using his right hand. He also had difficulty dressing and undressing.
Dr Black diagnosed left lateral epicondylitis with no residual consequences, degenerative changes in the left gleno-humeral and AC joints, right lateral epicondylitis and degenerative changes in the right gleno-humeral and AC joints with right bicep tendonitis. He assessed Mr Thompson to have a 20 percent permanent loss of efficient use of his right arm at or above the elbow and a 10 percent loss of efficient use of his left arm at or above the elbow. He considered it reasonable to accept that the injury at work and conditions of employment with the Council were significant contributing factors to the impairments in Mr Thompson’s shoulders and right elbow.
Under “fitness for work”, Dr Black concluded that Mr Thompson had significant medical impairments in both upper limbs and would be disadvantaged in any work or activity calling for full and efficient use of both arms. The heavy labouring work he had been performing would not be appropriate and any work should avoid heavy manual use of the arms, in particular, shovelling, use of a crowbar, lifting, and carrying heavy weights.
Dr Black reviewed Mr Thompson on 29 October 2008 and reported again on 10 November 2008. He noted that Mr Thompson had remained at work but his bilateral shoulder pain kept worsening, as did the pain in his elbows. In addition, Mr Thompson developed pain in his hips, knees and hands. Mr Thompson’s multiple symptoms were such that he could not continue with the Council and he resigned. Since ceasing work, his symptoms have continued to worsen.
As a result of his symptoms, Mr Thompson had lost much of his manual dexterity and the use of both arms. He had difficulties squatting, kneeling, walking or sitting for prolonged periods. If he did kneel or squat, he had difficulty standing up. The doctor recorded that Mr Thompson was not working in any capacity and was living off his savings.
Dr Black diagnosed Mr Thompson to have degenerative changes in both shoulder joints and AC joints, left medial epicondylitis and evidence of symptomatic degenerative osteoarthritis in his back, hips, knees and hands. He assessed him to have a 30 per cent permanent loss of efficient use of both arms at or above the elbow. Based on the history he obtained, Dr Black thought it reasonable to accept that “injury at work and conditions of employment with the Council were significant contributors to the impairments of this man’s upper limbs.” Dr Black considered Mr Thompson to be totally and permanently incapacitated for work of any kind.
Mr Thompson also relies on medical certificates from Dr Ellis, dated 2 October 2008, 20 October 2008, 7 November 2008, 28 November 2008, 12 December 2008, and 9 February 2009. In his first certificate, Dr Ellis diagnosed “severe osteoarthrition [sic, osteoarthritis] – esp. shoulders, elbows, hips, R thumb.” He recorded a date of injury as “6-8 months” and under “How the injury occurred”, he recorded “exacerbation of [an] accepted injury”. He declared Mr Thompson to be unfit for work from 25 September to 13 October 2008. His subsequent certificates provided the same diagnosis, but he declared Mr Thompson fit for suitable duties for four hours a day five days a week with a lifting limit of two kilograms from 8 November 2008. The doctor increased those hours to eight hours per day five days a week with a three-kilogram lifting limit (no repetitive bending/lifting; supervising duties only) from 12 December 2008. In the certificate of 9 February 2009, Dr Ellis certified the same hours but increased the lifting limit to five kilograms while maintaining the other restrictions.
On 18 December 2008, Catherine Ford, senior case manager with StateCover, wrote to Dr Ellis outlining a brief history of Mr Thompson’s employment with the Council. She advised that Mr Thompson had suffered a heart attack in June 2004 (Dr Black recorded that the heart attack occurred in 2002) that resulted in him being off work for five months. Since that time, it was noted that Mr Thompson had not been as “hands on with work” and that his colleagues encouraged him to let others do the heavier work. It was stated that Mr Thompson had been a works supervisor since 2001 and the majority of his time at work was spent in supervisory duties including paperwork. Colleagues advised that Mr Thompson was the type of supervisor who would help out and would spend 20 to 30 per cent of his day on manual work with the crew.
Ms Ford was of the opinion that Mr Thompson’s duties since commencing as a works supervisor were less physically demanding and would not have been a substantial contributing factor to his ongoing degenerative joint condition. She asked Dr Ellis the following questions:
“In view of the above information regarding Mr Thompson’s duties of recent years would you agree with our opinion that Mr Thompson’s duties since commencing as a Works Supervisor in 2001 have not been a substantial contributing factor to [the] aggravation, acceleration, exacerbation or deterioration of [the] osteoarthritis in his shoulders, elbows, hips and right thumb?
Would you consider that since he suffered a heart attack and has reportedly reduced his involvement in heavier work that Mr Thompson’s work duties have not been a substantial contributing factor to [the] aggravation, acceleration, exacerbation or deterioration of osteoarthritis in his shoulders, elbows, hips and right arm?
What [sic, whether] you consider that Mr Thompson’s duties prior to commencing as Works Supervisor would have been a substantial contributing factor to either causing or aggravating/exacerbating his degenerative joint condition?”
Dr Ellis replied on 23 December 2008 that he started treating Mr Thompson in 2001. He noted that Mr Thompson’s previous arm, elbow and shoulder injuries had been accepted and were the subject of a settlement. For the whole time that Dr Ellis treated Mr Thompson, his joint pains significantly disabled him. Mr Thompson presented on 25 September 2008 as a result of increased symptoms and his solicitor’s recommendation. Mr Thompson complained that the “increasing pain for months had troubled him”. There was no particular specific injury. Dr Ellis treated him for a similar exacerbation in 2003. Mr Thompson complained (presumably in September 2008) of pain in his shoulders, elbows, hips and right arm. Examination revealed a “tired man in obvious pain”. Dr Ellis diagnosed an exacerbation of his osteoarthritis. After a period of total disability, Dr Ellis felt that the worker was fit for driving or supervising duties for thirty-eight hours per week, essentially the same duties he was fit for as a supervisor with the Council. He stated that the natural history for Mr Thompson’s condition was for a gradual deterioration with the possibility of exacerbations and remissions from time to time. There was no restriction in Mr Thompson’s work capacity from a cardiovascular point of view.
In addition to his report of 23 December 2008, StateCover also relies on clinical records produced by Dr Ellis that date from 24 September 2001 until 12 December 2008. No notes have been produced for the period from 20 May 2003 until 25 September 2008. The entry for 25 September 2008 reads:
“States pain has been bad for months
No longer responds to Celebrex
Can’t sleep
Has run out of serepax & pain killed [sic] prescribed for kidney stones by ED
Resigned from work due to being made ‘scapegoat’ for error involving someones [sic] driveway.
If dismissed, would have lost $60,000.00 in termination benefits
Denies depression but getting increased somatic symptoms
Unable to recall pain Killer given by ED
Has used Tramadol in past – used in short term until brings details of other agent
I have no record of WC claim for OA
P-gradually titrate amitryptiline used reg analgesia, c/w hypnotic for now, bring all details of WC claims.”After viewing Dr Ellis’s notes, Ms Ford wrote to the doctor on 7 January 2009 with the following questions:
“We note from your clinical records that is [sic, it] appears Mr Thompson did not consult you between 20/12/2002 and 25/9/08. Is that correct?
Do you believe Mr Thompson’s duties as a supervisor from June 2004 until his resignation in July 2008 have been a substantial contributing factor to his condition considering her [sic, he] did not consult you for 6 years?
Alternatively, do you believe his condition has progressed as expected [with] deterioration from his previous injuries in 2001/2002?”
Dr Ellis replied on 9 January 2009 that he had seen Mr Thompson on 74 occasions between 20 December 2002 and 23 September 2008. Most of those attendances involved personal medical issues or workers compensation issues unrelated to “the current enquiries” and it was not appropriate that he send those notes, but he could relay that Mr Thompson mentioned shoulder and musculoskeletal pains during 19 consultations between 8 March 2003 and 13 June 2008. The doctor added that Mr Thompson’s duties as a supervisor still required him to assist with manual duties though, mostly, Mr Thomson avoided those duties. Dr Ellis had a reference of Mr Thompson having a severe exacerbation of shoulder symptoms due to shovelling on 20 May 2003. He recovered from that exacerbation and returned to his “background level of symptoms”. Dr Ellis concluded, that it was reasonable to state that Mr Thompson’s duties as a supervisor from 2004 had not “unduly effected [sic] the expected deterioration of his previous injuries.”
Other Evidence
StateCover also relies on a letter from Linda Kirkwood, executive manager human resources and organisational development with the Council, dated 24 July 2008 to Mr Thompson advising that he had been suspended on pay and was to attend a meeting on 25 July 2008 to present a case as to why he should not be dismissed over an alleged misuse of Council resources in breach of the Council’s Code of Conduct. Before that meeting was held, Mr Thompson resigned by letter dated 25 July 2008.
In an email from Michele White, administrative assistant with the Council, to Ms Ford dated 3 December 2008 it was suggested that a Council worker, Paul Murat, had witnessed Mr Thompson getting in and out of trenches and doing heavy manual work for Peter Rowan. Mr Murat emailed Ms White on 9 February 2009 stating that on or before 20 August 2008 he was called to inspect a sewer extension at the Seventh Day Adventist Church at North Boambee Road when he saw Mr Thompson “working in the excavation”. His email does not indicate what work Mr Thompson was performing.
Documents produced in answer to a Notice to Produce Documents served on Mr Thompson reveal that for the period ending 22 August 2008, Naric Civil North paid him $1,248.75. Wage records from Peter Rowan reveal that Mr Thompson started working for that company on 25 August 2008 and that he worked virtually full time, with several periods of overtime, from that date until mid January 2008.
It was agreed at the arbitration that Mr Thompson’s average weekly earnings with Peter Rowan were $1,075.00 and that his probable earnings but for his injury with the Council were $980.00. As a result of the revelation of Mr Thompson’s earnings with Peter Rowan, which came at the very end of the arbitration, the Application was amended to claim compensation from 15 January 2009 instead of from 10 July 2008 as had been originally claimed, or from 25 July 2008 as had been claimed at the beginning of the arbitration.
THE ARBITRATOR’S REASONS
After setting out the nature of the allegation in the Application and noting the contents of the section 66A Agreement, the Arbitrator found:
(a)she was unable to accept that the date of claim of 11 November 2003 could encompass a claim for incapacity due to a specific injury on 28 April 1994 (Reasons at [13] and [14]);
(b)the allegation of injury on 11 November 2003 did not permit Mr Thompson to allege that he was entitled to weekly compensation as result of the injury to his arms in 1994 (Reasons at [15]);
(c)the allegation of injury due to the nature and conditions of employment with a deemed date of 11 November 2003 was “something of a mystery”. There was no evidence of any notice or “new” claim for compensation alleging injury on that date and neither Mr Thompson’s statement nor the medical evidence referred to any injury on that date. Mr Thompson told Dr Black in November 2008 that there had been no further accidents since October 2003. There was no evidence of incapacity due to injury to the arms, shoulders, back and knees on 11 November 2003 (Reasons at [16]);
(d)the applicant did not sustain any injury on 11 November 2003 to his arms, shoulders, back and knees due to the nature and conditions of his employment with the Council (Reasons at [17]);
(e)it followed that the only injury to be considered was the allegation of injury to the shoulders, arms, back and knees as a result of the nature and conditions of employment with a deemed date of injury of 25 July 2008 (Reasons at [18]);
(f)there was no evidence that any injury due to the nature and conditions of employment for the period up to 25 July 2008 resulted in any incapacity for work or any loss of earnings that would entitle Mr Thompson to weekly compensation (Reasons at [22]);
(g)Mr Thompson’s medical condition was clearly a disease and “causation (if work related) on the applicant’s own evidence, can only be manual work carried out by the applicant” (Reasons at [29]);
(h)any work related injury was a disease, or an aggravation of a disease, contracted by gradual process due to the manual nature of Mr Thompson’s work (Reasons at [30]);
(i)Mr Thompson said he ceased work with Peter Rowan on 15 January 2009 due to the level of pain and physical limitations (Reasons at [33]);
(j)Mr Thompson’s duties after 25 July 2008 were of a manual nature. Accordingly, he was employed [by Peter Rowan] in employment to the nature of which the disease was due (Reasons at [39]);
(k)given the nature of Mr Thompson’s work subsequent to 25 July 2008, that work was a substantial contributing factor to the aggravation, exacerbation or deterioration of the disease (Reasons at [43]);
(l)any incapacity due to an injury being a disease was on 15 January 2009 (Reasons at [44]), and
(m)Mr Thompson did not sustain any injury in the course of or arising out of his employment with the Council on 11 November 2005 [sic, 11 November 2003] or 25 July 2008.
ISSUES IN DISPUTE
Mr Thompson alleges that the Arbitrator erred in that she:
a) found that he did not sustain any injury on 11 November 2003;
b) found that the only injury to be considered was the allegation of injury due to the nature and conditions of employment to the arms, shoulders, back and knees with the deemed date of injury being 25 July 2008;
c) did not take into account the injury to Mr Thompson’s right and left arms as a result of the nature and conditions of his employment prior to 11 November 2003;
d) did not have regard to the previous settlement which had a nominated date of injury of 28 April 1994;
e) ignored the period of employment prior to 2003;
f) found that Mr Thompson had not sustained an injury in the course of his employment or arising out of his employment with the Council on 28 April 1994, 11 November 2003, or 25 July 2008;
g) failed to have regard to the medical opinions of Drs Black and Ellis;
h) gave no reasons to discount the role played by the agreed loss of use of the left and right arms in any incapacity;
i) in finding that the work related injury was a disease contracted by a gradual process due to the manual nature of Mr Thompson’s work ;
j) found a deemed date of injury of 15 January 2009;
k) found that the work with Peter Rowan between August 2008 and January 2009 was a substantial contributing factor to the injury, and
l) failed to assess Mr Thompson’s incapacity on the open labour market.
SUBMISSIONS, DISCUSSION AND FINDINGS
The appeal essentially comes down to a dispute about the nature of the claim particularised in the Application and whether, given the nature of that claim, Mr Thompson received an injury.
Pleadings
Mr Thompson argues that the Arbitrator had unequivocal evidence available of injury and incapacity stemming from the agreed injury in 1994. Whilst that submission has considerable merit, the difficulty is that the pleadings are in such an unsatisfactory state that it is unclear what injury is alleged in the Application. Though the Commission is not bound by strict pleadings (Far West Area Health Service v Radford [2003] NSWWCCPD 10), applicants must properly identify the basis of their claim. If it is alleged that an injury has resulted from repetitive activities over a period of time, that period and the nature of the activity must be identified. Mr Thompson identified the activity but did not identify the period over which the injury was allegedly sustained.
In a case where it is alleged that the injury was received over a period of time it will not normally be sufficient to merely state a specific date or dates, as has been done in the present case. Mr Thompson’s alleged date of injury of “11 November 2003 and on or about 25 July 2008”. The date of 11 November 2003 was not a deemed date of injury, as Mr Thompson seems to suggest, but was merely the date on which Mr Thompson claimed lump sum compensation.
The deeming provisions in sections 15 and 16 of the 1987 Act assume that an injury has taken place and merely deem the injury to have occurred on a certain date for the purpose of determining which employer or insurer is liable to pay any compensation that may be found to be payable. The issue was considered by Mahoney A-P in Crisp v Chapman (1994) 10 NSWCCR 493 (‘Crisp’) where his Honour said at 495:
“It is, I think, a confusion to treat section 15 or section 16 of the 1987 Act as, in the sense here relevant, creating liability for compensation. In general, each section assumes that an injury has occurred and each provides the means of determining when the injury is deemed to have happened, by whom the compensation is payable, and other ancillary matters. In principle, it remains for the worker to prove that the injury has occurred and accordingly that section 9(1) has been satisfied. To prove that, it is necessary for the worker to prove the ‘happening’ of an injury within section 4.” (emphasis added)
Therefore, in any case where it is alleged that a worker has received an injury due to repeated trauma over a period of time, that period should be identified in the Application to Resolve a Dispute. That did not happen in the present matter. Counsel for Allianz identified the shortcomings in the Application on several occasions and made it crystal clear that, as particularised in the Application, the claim was in respect of injury alleged to have occurred from 2003 and not before (T6.33, T14.36, T14.55, T30.32, and T40.27). Mr O’Halloran’s responded, at T30.43:
“MR O’HALLORAN: My friend’s comments concerning the applicant not relying on injuries prior to November 2003 are not correct because the applicant first brought a claim under sections 66 and 67 relying upon nature and conditions of his employment up until that time, and we are quite permitted to rely upon those nature and conditions in these proceedings.”
There are three answers to Mr O’Halloran’s submission. First, the basis of the 2003 settlement must be inferred from the documents. Whilst the letter of claim dated 11 November 2003 refers to an injury “sustained due to the nature and conditions of his [Mr Thompson’s] employment” with the Council from “April 1994 [sic, 1984] to date”, the Section 66A Agreement refers to a date of injury of 28 April 1994 and, consistent with the injury having been received before 1 January 2002, the settlement was effected under the Table of Disabilities. Had it been agreed that Mr Thompson had received an injury due to repeated heavy lifting up to November 2003, then the settlement would have been under the new regime for whole person impairment introduced in 2002. Second, whilst it is true that Mr Thompson is “permitted” to rely on an injury received as a result of the work he performed with the Council from 1984 up to 11 November 2003, he can only do so if such a claim is properly identified and particularised, either in the Application or in relevant correspondence. That did not happen in this case. Last, it is submitted that Allianz prepared its case on the assumption that Mr Thompson was not relying on the injuries sustained before 2003 (T40.44-54). Had the claim been properly particularised at the arbitration then there seems little doubt that the insurers would have sought, and most probably have been granted, an adjournment.
Mr Thompson’s submissions on appeal are difficult to follow but appear to proceed on the misunderstanding that it was only necessary to particularise the “deemed date[s] of injury”, alleged to be 11 November 2003 and 25 July 2008. Leaving aside the fact that 11 November 2003 is most unlikely to be a deemed date of injury, Mr Thompson’s submissions are not correct. The claim had to properly identify the period during which it is alleged Mr Thompson suffered his injury and the alleged cause of that injury. The only dates provided were 11 November 2003 and 25 July 2008. Mr Thompson provided no proper particulars, either in the Application or the letter of 13 October 2008, of the period on which he relied to found his claim.
It follows that Mr Thompson’s claim, as it is currently particularised, is restricted to whether he received an injury as a result of heavy physical work placing effort and strain on his arms, shoulders, back and knees since 11 November 2003. The Arbitrator did not err in failing to have regard to the period of employment up to November 2003 because that period was never particularised as being relevant to the current claim. The Arbitrator did not find that Mr Thompson sustained no injury on 28 April 1994, but merely that he had not particularised that injury in the present claim.
Mr Thompson’s submissions on appeal are incorrect. They first refer to 11 November 2003 as the date on which the claim was duly made. Later they refer to the Application having a “nominated date of injury” of 11 November 2003, though “clearly the date of injury had been agreed between the parties as 28 April 1994”. It may well be that Mr Thompson intended to allege an injury on 28 April 1994, and to claim weekly compensation as a result of the agreed section 66 losses that resulted from that injury, but he did not particularise that claim. Had he sought to amend his claim that amendment would have been opposed because neither Allianz nor StateCover had prepared to meet such a claim (T40.44-54).
Injury
Mr Egan correctly submitted that Mr Thompson’s “condition” is in the nature of a disease (T24.25), namely, osteoarthritis, degenerative changes in his shoulders and bilateral epicondylitis. No other injury or condition is alleged or could be relied upon. As a result, the claim must be determined under the disease provisions in sections 4(b)(i) and 15, and/or sections 4(b)(ii) and 16 of the 1987 Act. I accept and agree with the Arbitrator’s finding that osteoarthritis, degenerative changes in the shoulders and epicondylitis are properly characterised as diseases (Perry v Tanine Pty Ltd t/as Erminton Hotel & ors [1998] NSWCC 14, (1998) 16 NSWCCR 253; Fletcher International Exports Pty Ltd v Barrow & anor [2007] NSWCA 244, (2007) 5 DDCR 247).
Mr Thompson’s submission that the Arbitrator erred in finding that any work related injury was a disease is unsupported by any reasoning or analysis of the evidence. The evidence from Dr Black unequivocally supports a finding that Mr Thompson’s conditions are properly characterised as diseases. Mr Thompson did not, however, contract the disease in the course of his employment with the Council and section 4(b)(i) does not apply.
The question remains: did he suffer an aggravation, acceleration, exacerbation or deterioration (‘aggravation’) of a disease and was his employment a contributing factor to that aggravation (section 4(b)(ii))? If the answer to these questions is ‘yes’, compensation is payable by the employer who last employed Mr Thompson in employment that was a substantial contributing factor to the aggravation (section 16(1)(b)).
For the following reasons, I am not satisfied that Mr Thompson suffered an aggravation injury under section 4(b)(ii) as a result of his duties from 11 November 2003 until 25 July 2008:
(a)his duties in that period were, on his own evidence in his statement of 28 August 2008, predominantly supervisory and did not require him to exert any great physical effort. On the evidence from Ms Ford, which I accept, Mr Thompson did less physical work after his heart attack, which was in either 2002 or 2004;
(b)Mr Thompson’s assertion that he had difficulty coping with his supervisory work is inconsistent with his stated reason for resigning and the fact he did not see Dr Ellis until 25 September 2008, and I do not accept it;
(c)at its highest, the evidence from Dr Ellis might have supported a finding of a temporary exacerbation of Mr Thompson’s shoulder symptoms due to shovelling in May 2003. That period is not, however, relied upon;
(d)Dr Ellis did not link his diagnosis of “an exacerbation of his osteoarthritis” (see [38] above) with Mr Thompson’s duties as a supervisor between November 2003 and July 2008. In light of Dr Ellis’ report of 9 January 2009, where he concluded that Mr Thompson’s duties as a supervisor from 2004 had not “unduly effected [sic] the expected deterioration of his previous injuries”, it is not open to infer such a link, and
(e)Dr Black’s evidence is entitled to little weight as it is based on the patently false history that Mr Thompson ceased work because of his worsening symptoms. He didn’t, he ceased work because he resigned rather than attend a meeting in the manager’s office to present a case as to why he should not be dismissed.
As no other injury is alleged in the Application, it follows that Mr Thompson has failed to establish that he received an injury in the course of or arising out of his employment with the Council between 11 November 2003 and 25 July 2008. As no aggravation injury occurred, it is not necessary to determine whether Peter Rowan was an employer who last employed Mr Thompson in employment that was a substantial contributing factor to the aggravation.
Future conduct of the matter
Mr Thompson’s claim, as pleaded, must fail. That does not, however, mean that his rights are at an end. Under the section 66A Agreement, Allianz has admitted liability for a permanent loss of efficient use of each of Mr Thompson’s arms at or above the elbow as a result of an injury on 28 April 1994.
As a result of that loss, Mr Thompson is unarguably restricted in his ability to perform physical work that requires full efficient use of his arms. That loss may well sound in an entitlement to weekly compensation because it clearly restricts Mr Thompson’s ability to sell his labour in the labour market reasonably accessible to him.
The fact that he suffered no economic loss while he was employed with the Council, and then with Peter Rowan, is not determinative of his entitlement to weekly compensation once he is looking for work in the open labour market (see Steggles Pty Ltd v Aguirre (1988) 12 NSWLR 693; Ranvet Pty Ltd v Vasilevski [2008] NSWWCCPD 81 at [72] to [75]) and to the extent that counsel for the insurers submitted to the contrary at the arbitration their submissions were contrary to clear Court of Appeal authority that has been applied many times in the Compensation Court and in the Commission. The circumstances of Mr Thompson’s resignation will, however, be relevant to the exercise of the discretion under section 40(1) (see Rail Corporation of New South Wales v B [2009] NSWWCCPD 81).
If Mr Thompson wishes to pursue such a claim a fresh application will need to be filed against the Council, but only naming Allianz as, given the findings I have made, it will not affect StateCover. No estoppel will arise in respect of such a claim, because this decision has made no determination as to Mr Thompson’s entitlement to weekly compensation in respect of any injury sustained before 11 November 2003, but has merely determined that he sustained no injury after that date. Though it would have been preferable if the pre 2003 injury had been properly particularised and claimed in the present Application, given the terms of section 354 of the 1998 Act and the fact that Allianz has always been aware of the 1994 injury, it cannot be argued that Mr Thompson is prevented from bringing such a claim because of any ‘Anshun Estoppel’ or some similar principle. There is no reason of public policy, or principle of unreasonableness, that will prevent the further claim being dealt with according to its substantial merits.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I have concluded, for the reasons given in this decision, that the Arbitrator’s orders are correct.
DECISION
For the reasons given in this decision, the Arbitrator’s determination on 22 April 2009 is confirmed.
COSTS
Each party is to pay his or its own costs of the appeal.
Bill Roche
Deputy President
7 August 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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