Tizzone v F & K Electrics Pty Limited
[2008] NSWWCCPD 14
•6 February 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION
CONSTITUTED BY AN ARBITRATOR
CITATION:Tizzone v F & K Electrics Pty Limited [2008] NSWWCCPD 14
APPELLANT: Ross Tizzone
RESPONDENT: F & K Electrics Pty Limited
INSURER:GIO General Limited
FILE NUMBER: WCC4925-07
DATE OF ARBITRATOR’S DECISION: 12 October 2007
DATE OF APPEAL DECISION: 6 February 2008
SUBJECT MATTER OF DECISION: Error of law; presumption of continuance of aggravation of disease; section 60 of the Workers Compensation Act 1987; weight of evidence.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Walker Legal
Respondent: Hicksons
ORDERS MADE ON APPEAL: Paragraph 1 of the decision of the Arbitrator dated 12 October 2007 is revoked, and the following order is made in its place:
1. The Respondent Employer is to pay the Applicant Worker’s reasonable and necessarily incurred section 60 of the Workers Compensation Act 1987 expenses upon production of accounts and/or receipts.
Paragraph 2 of the decision of the Arbitrator dated 12 October 2007 is confirmed.
The Respondent Employer is to pay the costs of Appeal of the Appellant Worker.
BACKGROUND
On 9 November 2007 Mr Ross Tizzone, the Appellant worker, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission, against a decision dated 12 October 2007.
The Respondent Employer in this Appeal is F & K Electrics Pty Limited.
The Insurer is GIO General Limited.
Mr Tizzone was delivering a brick saw to a building site as part of his usual daily duties as a driver and tool repair technician, in the employ of F & K Electrics. The saw was said to weigh between 40 and 50 kgs. As he unloaded the saw, pulling it towards himself, Mr Tizzone states that he felt a sharp pain in his lower back and left hip. He notified his employer of the injury on that day. On the following day Dr Rekha Jayaram Rao, Mr Tizzone’s treating doctor, certified him unfit for work for about four weeks. There were no suitable duties available to him upon his return to work and he was dismissed from his employment on 24 February 2005.
The injury in dispute is the injury to his left hip. Liability is not disputed in relation to his back.
On 14 September 2005 Mr Tizzone was compensated for 4% whole person impairment for his back.
On 6 March 2007 the Insurer wrote to Dr Allen Turnbull, Orthopaedic Surgeon, to whom Mr Tizzone was referred by his treating doctor, and declined to give approval for a left hip replacement. On 3 May 2007 Mr Tizzone lodged a formal claim with the Insurer because of further impairment of his back and his left hip. He also made a claim for medical expenses incurred for hip replacement surgery.
The Insurer formally declined liability in respect of the left hip treatment, including the left hip replacement on 6 March 2007, relying upon the provisions of sections 4 and 9A of the Workers Compensation Act 1987 (‘the 1987 Act’).
Mr Tizzone filed an ‘Application to Resolve a Dispute’ in the Commission on 3 July 2007 for lump sum compensation, compensation for pain and suffering, and for medical expenses.
In due course, the Arbitrator was required to determine the dispute, as the parties were unable to reach agreement throughout the dispute resolution process leading up to the arbitral hearing.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 12 October 2007 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1.Respondent to pay the Applicant’s reasonable and necessary medical expenses up to 6 March 2007 upon accounts and or receipts.
2.For the purposes of Schedule 6 of the Workers Compensation Regulation 2003 I certify this matter as complex pursuant to Table 4, Item 4 and certify that there is to be a 20% increase of the costs otherwise available at Item F or Table 1.”
At [41] and [42] of the Arbitrator’s ‘Statement of Reasons for Decision’ (‘Reasons’), the following summary is found:
“41.On 16 August 2004, Mr Tizzone suffered an injury arising out of or in the course of employment with the Respondent and that the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease (s.4).
42.Employment was a substantial contributing factor to the aggravation of the osteoarthritis however any aggravation had ceased by the time the claim was declined on 6 March 2007.”
At [8] of the Arbitrator’s Reasons, she states:
“The Applicant discontinued the lump sum claim and the claim for physiotherapy treatment. There is no requirement to file a notice of discontinuance.”
ISSUES IN DISPUTE
The issues in dispute in the Appeal are twofold, and are set out in Mr Tizzone’s grounds of appeal, as follows”
“1.The Arbitrator misstates a question of law in relation to ‘injury’ at paragraph 32.
2.The Arbitrator reached a legal conclusion that was not supported by the evidence. She concluded that the Applicant’s work injury aggravation of his left hip arthritis ceased prior to July 2005. Based on the law and the evidence, this was an improper conclusion.”
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.
Section 352(1) of the 1998 Act provides:
“A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.”
The must be lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. Mr Tizzone has complied with this requirement.
Section 352(2) of the 1998 Act provides:
“The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
There is no dispute that the provisions of section 352(2) and (4) are satisfied. However, F & K Electrics does not concede that Mr Tizzone has articulated any valid grounds of appeal. Whether or not this is so cannot be adequately dealt with as a preliminary issue in this matter, and a consideration of those grounds of appeal on their merits is required. I am satisfied that the requirements of the section are satisfied and this Appeal may proceed.
Leave to appeal is granted.
APPEAL TO A PRESIDENTIAL MEMBER
A Presidential member has a specific and limited role in the review of a decision of an Arbitrator. A review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Buildings Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616).
In this case, Mr Tizzone must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act. Moreover, the error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; and Absolon v NSW TAFE [1999] NSWCA 311).
.
EVIDENCE, SUBMISSIONS, DISCUSSION AND FINDINGS
Did the Arbitrator err in misstating a question of law in relation to injury at paragraph 32 of her Reasons?
At paragraph 32 of her Reasons, the Arbitrator states:
“The issue of whether the aggravation continues to be as a result of the injury on 16 August is more vexed. It is clear when looking at the clinical records of Dr Rao that Mr Tizzone complained of left hip pain on 17 August 2004. He was sent for X-rays, which showed moderately severe degenerative changes of the hip joint with osteophytosis of the acetabulum margin. There is a reference to L hip pain on 24 August 2004 but the next reference to hip pain is not until July 5 2005 when Dr Rao records under history ‘Affected joints; L Hip very bad’. It appears from the clinical records that the hip pain begins to get progressively worse from this point onwards. The reference to July 25 2005 refers to ‘l hip pain, last week had an attack of stabbing back & leg pain lasted ½ hr sitting & stood up.’ And on 23 September 2005 the history records, ‘saw neurosurgeon, back & hip.’ What this history of the clinical records suggests, as the Respondent submitted, is that the hip pain does not become significant until some time after the injury of 16 August 2004 although I accept that there was an aggravation on that date.”
Mr Tizzone submits:
“At paragraph 32 the arbitrator says, ‘The issue of whether the aggravation continues to be as a result of the injury on 16 August [2004] is more vexed.’ This is an incorrect statement of the issue. The ‘aggravation’ to which the Arbitrator refers is, in fact, the ‘injury’. The Applicant injured his left hip on 16 August 2004. The injury was by way of an aggravation to an underlying arthritic condition. The Arbitrator correctly found that the worker received this injury and correctly found that his employment was a substantial contributing factor to the injury. It was erroneous to then ask whether the aggravation continued to be as a result of the injury.”
F & K Electrics submits:
“Respondent does not concede that Ground 1 is a valid ground of appeal in accordance with the Workplace Injury Management Act [sic] 1998 in that the Arbitrator did not mistake a question of law in relation to the injury.”
The Arbitrator’s statements at [32] of her Reasons should be read in the context of her findings and relevant observations as to injury.
At [24] the Arbitrator says, “It is clear from the reports of the doctors that they accept that an injury occurred on 16 August. The majority of the doctors accept that Mr Tizzone suffered an injury to his back and hip as a direct result of the injury.”
At [26] the Arbitrator says: “Mr Tizzone does not refer in his statement to any other activity which could have caused his injury other than the one incident of 16 August 2004. It seems to me that the evidence points to one date of injury which is 16 August 2004 as being the precipitating factor to his hip pain.”
At [27] the Arbitrator states:
“On balance I find that Mr Tizzone suffered an injury arising out of or in the course of employment with the Respondent on 16 August 2004 and that the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease (s.4).”
The definition of injury is found at section 4 of the 1987 Act.
“4 In this Act -
injury –
(a)means personal injury arising out of or in the course of employment;
(b)includes -
(i)a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was c contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(c)does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
A guide as to the basis of this ground of appeal is found at [25] of her Reasons, where the Arbitrator said, “On balance, I accept that the injury caused an aggravation, acceleration, exacerbation or deterioration of a disease.” [Emphasis added].
Her comments at [32], to which Mr Tizzone invites attention, start out along the same lines. However, at the conclusion of that paragraph, the Arbitrator refers to the fact of injury on 16 August 2004 with the aggravation of disease as constituting that injury.
I agree with Mr Tizzone that the statements made by the Arbitrator at the commencement of [32] and in [25] of her Reasons are strictly incorrect. “Injury” is, by statutory definition, the aggravation, acceleration, exacerbation or deterioration of any disease where employment is a contributing factor. Section 4 does not define “injury” in terms of being the cause of aggravation, acceleration, exacerbation or deterioration of disease (as distinct from the work-related activity that caused the “injury”). The Arbitrator’s pronouncement of the “issue” at [32] appears to be aimed at querying the duration and on-going impact of the injury sustained on 16 August 2004, rather than whether or not the injury was sustained. This is taken up in, and is relevant to, the second ground of appeal.
The Arbitrator’s further comments at [31], in relation to her discussion as to whether employment was a substantial contributing factor to the injury, pursuant to section 9A of the 1987 Act, are instructive on the point. She said:
“In my view the only conclusion I can come to in respect of whether work was a substantial contributing factor to the injury is that it was, at least initially. I have accepted above that Mr Tizzone injured his hip at work as he pulled the heavy saw from the front of the ute. He clearly had degenerative changes in his hip at the time of the injury and I have found above that they were aggravated by his actions.”
Having regard to the whole of the Arbitrator’s Reasons, her specific statements at [24] and [26] of those Reasons, her detailed discussion of the medical evidence and the evidence of the incident that caused the work-related injury, and in particular, her formal finding at [27], it is clear that she laboured under no misapprehension of the relevant law as to injury, notwithstanding some occasional lapses in the precision of her discussion and observations. Mr Tizzone concedes that the Arbitrator’s actual findings as to injury, and employment being a substantial contributing factor, are correct. While the Arbitrator did make some inaccurate comments in getting to those findings, such comments do not alone, amount to an error of law that is fatal to her decision. I find accordingly.
This ground of appeal is not made out.
Did the Arbitrator err in concluding “that there had been a cessation of the contribution by the work incident in the aggravation of the Applicant’s arthritis in the left hip”?
Mr Tizzone frames this, the second ground of appeal, on two bases. First, he submits, “This finding flew in the face of the legal presumption of continuance.” Second, he submits, “It was also against the weight of the evidence.”
Presumption of Continuance
Mr Tizzone submits:
“In the absence of an intervening factor that contributed to the aggravation of his left hip arthritis, it was not open to the arbitrator to find that the aggravation continued but that the work related cause ceased. It is presumed as a matter of law that the work related contributed continued. The presumption is a rebuttable presumption of fact. It is not rebutted by the evidence.”
F & K Electrics submits:
“Respondent does not concede that Ground 2 is a valid ground of appeal in accordance with the Workplace Injury Management Act [sic] 1998 in that it submits that the Arbitrator’s decision was supported by the evidence.”
A presumption of continuance [that is not an irrebuttable presumption of law], does not have a status higher than other evidence: Christopher Carian v Scott Elton, Clinton Carian v Scott Elton, Debbie Laurie v Scott Elton, Ivan Jones v Scott Elton [2000] NSWCA 175 (3 August 2000), per Mason P, at [28] (‘Elton’). His Honour went on to say,
“Nor do the authorities separate the evidence giving rise to the presumption from the other evidence in the case. As Dixon J put it in Axon v Axon [1937] HCA 80; (1937) 59 CLR 395 at 405 [‘Axon’], the presumption ‘is but a deduction from probabilities and must always depend on the accompanying facts’. (See also Re Peatling [1969] VR 214 at 226). The presumption of continuance is essentially a matter of relevance. It is part of a rational method of weighing the strength of two competing pieces of evidence.”
To put it another way, “Presumptions … may be looked on as the bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts.” (Garfath v Garfath (1959) 59 SR (NSW) 362 at 363, citing Wigmore on Evidence (3rd ed., 1940) Vol. 9, p 291. See P K Waight and C R Williams, Evidence Commentary and Materials, 5th ed., 1998, (LBC Information Services: North Ryde), at 109).
Mr Tizzone correctly submits that any presumption of continuance in this matter is a rebuttable presumption of fact. He further submits that the evidence that was before the Arbitrator in this matter does not rebut any such presumption.
However, he goes further in submitting that such rebuttal must consist of an “intervening factor that contributed to the aggravation of his left hip arthritis”, and in the absence of such an intervening factor, it was not open to the Arbitrator to find that the aggravation continued but that the work related cause ceased.
In my view, such “unequivocal” evidence is not necessarily required to displace the presumption of continuance (Elton).
Any presumption of continuance has no higher status than other evidence and it must be weighed against the accompanying facts of the case. “Its effect is [simply] that the existence of facts at one point of time is evidence of their existence at a later point of time. See Cloverdell Lumber Co v Abbott [1924] HCA 4; (1924) 34 CLR 122, 137-8 per Isaacs J” (Elton) per Handley JA at [53]. His Honour, disagreeing with Mason P, went on to say:
“I am unable, with respect, to accept that it is ‘a rational method of weighing the strength of two competing pieces of evidence’. Its primary function is to fill a gap in the direct evidence.”
In any event, it is established law that such a presumption has no greater status than any other evidence in the matter. It is therefore, the evidence and the treatment of the evidence by the Arbitrator, to which attention must be given, in order to determine whether or not she has erred. For this reason, the appeal cannot succeed on the presumption of continuance alone, in isolation from a proper consideration of the accompanying facts of the case.
Weight of the Evidence
Mr Tizzone submits, in the alternative, that the Arbitrator’s finding was against the weight of the evidence. He says that the Arbitrator relied on an interval that commenced on 24 August 2004 and finished on 5 July 2005. He submits that she said that Mr Tizzone’s symptoms became progressively worse after this interval (see [35] of her Reasons). He goes on to state that the Arbitrator also said that the hip complaints “were not consistently complained about” until after the interval (see [38] of her Reasons). Mr Tizzone submits that both of these findings were erroneous and against the weight of the evidence.
Mr Tizzone puts forward the following chronology:
·He injured his left hip on 16 August 2004. He felt something “click” on the left side of his back and left hip, and had difficulty in straightening up. He was trying to pull a 40 kg brick saw.
·He saw his treating doctor, Dr Rao, on the following day. Dr Rao “took a history that he complained of left hip and left groin pain.” Upon examination he was tender at the left hip and left ischial spine. The movements of the left hip were painful but he had full range of movement.
·On 24 August 2004 he attended Dr Rao again, complaining of left hip and back pain. X-rays showed degenerative arthritis.
·On 1 September 2004 he again consulted Dr Rao who recorded, “WC pain still there, having physio”.
·On 26 October 2004 a physiotherapy management plan signed by Harry Stamateris, physiotherapist, records “left hip is very stiff” and “left hip will need concurrent treatment to increase range of motion”.
·On 29 November 2004 the physiotherapist records “strong positive (word unclear) test of the left hip. Concurrent left hip treatment.”
·On 22 December 2004 the physiotherapist recorded “left hip stiffness and pain reacting only slowly with (words unclear)”.
·“There is then an important entry in Dr Rao’s notes on 25 January 2005.” He records “left sided pain in left groin”. This may be read in the context of the view of Dr Dixon who said at the bottom of page 4 of his report dated 6 May 2006 that Mr Tizzone was suffering from “groin pain from his hip”.
·On 4 March 2005 Mr Tizzone was still complaining of left hip symptoms to his physiotherapist who records “left sided and left hip stiffness is gradually improving at same time as gradual increase in gym exercises is occurring”.
·On 24 May 2005 he saw Dr Rao once more. “We know this from Dr Rao’s reported dated 9 June 2005.” Dr Rao records “the hip pain may be triggered by the incident at work. Ross did not have any previous hip pain so I cannot say this is a pre-existing condition.” Mr Tizzone says that the importance of this quote is that it is expressed in the present tense. “One can safely infer that when seen on 24 May 2005, the Applicant was complaining of pain in his left hip.”
·On 5 July 2005 Mr Tizzone again consulted Dr Rao, complaining of symptoms in the left hip that were “very bad”.
Mr Tizzone submits that the entry on 5 July 2005 is important. He says:
“The Arbitrator relied on the consultation of 5 July 2005 as being the point after which the Applicant began complaining of symptoms. This is clearly not so (see above). She also relied on it as a point from which his symptoms became progressively worse. This is only partly true. On 5 July 2005 the symptoms in the left hip had already reached a point where they were ‘very bad’. It is apparent that his symptoms worsened between 16 August 2004 and 5 July 2005. They were always present during this interval and they were reported to his local doctor and his physiotherapist. They were reported as improving in March 2005 but they were severe in July 2005. A possible reason for this is the cutting back of physiotherapy treatment at the request of the insurer in this latter period.”
Mr Tizzone further submits that the proposition that the contribution by the work injury of 16 August 2004 to the aggravation of his left hip arthritis was short lived is not sustainable. He says that he complained about his left hip on a routine basis from the date of his injury to the date when surgery was recommended in late 2006. “It is not an available finding on the balance of probabilities that the aggravation that occurred on 16 August 2004 somehow continues to day [sic] as a result of a factor other than the injury.”
He further submits that a finding that the aggravation ceased per se is not available. “The Arbitrator does not find that the aggravation ceased rather she finds that any aggravation caused by the incident of 16 August 2004 had ceased. In the event that her decision is construed as meaning to find that the aggravation itself ceased this is against the legal presumption of continuance.”
Mr Tizzone submits that the presumption is not rebutted by Dr Dixon’s view because he did not have a proper history of the complaints to the treating doctor and the physiotherapist. He says, “Dr Dixon does not get a history about routine complaints of left hip stiffness and pain in the first 12 months after the injury of 16 August 2004. Therefore his opinion, based on his one and only examination of the worker on 6 May 2006 is not capable of rebutting the presumption that the Applicant’s ongoing symptoms were a result of the aggravation of his left hip arthritis brought about by the incident at work on 16 August 2004.”
Finally, Mr Tizzone submits that a finding that the aggravation ceased is also inconsistent with the weight of the evidence, as set out in the chronology above.
F & K Electrics make no response to these submissions, other than the statement set out in [41] of these Reasons.
F & K Electrics’ position before the Arbitrator was that, if it was accepted that Mr Tizzone did sustain an injury in the course of his employment, then “at some point the work relationship disappeared and the underlying pathology took over.” (See [13] of the Arbitrator’s Reasons). On the other hand, Mr Tizzone maintains that there is clear evidence of injury to the hip and a continuous record of complaints in respect of the hip following the incident on 16 August 2004, out of which the injury arose. (See [14] of the Arbitrator’s Reasons).
The Arbitrator has conducted a considered and detailed analysis of the evidence, including the medical evidence, in arriving at her findings as to injury and employment being a substantial contributing factor to injury. Her findings are reasonable and available, being soundly based on the evidence before her.
The Arbitrator goes on to state at [32] of her Reasons, “The issue of whether the aggravation continues to be as a result of the injury on 16 August is more vexed.” She agrees with F & K Electrics that the hip pain does not become significant until some time after the injury of 16 August 2004, “although I accept that there was an aggravation on that date.” The Arbitrator specifically states at [38], [39] and [40]:
“38.It seems to me that Dr Rao’s clinical notes are to be preferred in respect of the history of the complaints and when considered in light of the history taken by the other doctors in relation to the hip it is clear on the evidence that the hip complaints were not consistently complained about until July 2005 almost a year after the incident. All of the doctors accept that there was pre-existing pathology; the question is whether the incident on the 16 August 2004 is causally related to Mr Tizzone’s current symptoms. In my view the evidence does not support that conclusion.
39.Whilst I accept that there was an initial aggravation of the pain [sic] in the hip in August 2004, it was short lived. It seems to me that it was not until July 2005 that the hip became sufficiently symptomatic for Mr Tizzone to mention it to his treating GP and that it was from this point onwards that the focus of his treatment began to include the hip. In my view the medical evidence does not provide a sufficient explanation for why there was an intervening period of close to a year between when he initially sustained the injury and when he complained to his doctor.
40.I find that whilst work was a substantial contributing factor to the aggravation of the osteoarthritis, by the time the claim was declined on 6 March 2007 that any aggravation caused by the incident of 16 August 2004 had ceased.”
A review of the medical evidence that was before the Arbitrator substantially supports the chronology put forward by Mr Tizzone. There is in fact, a pattern of complaint by him about his hip, from the date of injury on 16 August 2004, and continuing throughout and beyond the period up to 5 July 2005. The evidence does not support the Arbitrator’s finding that “the hip complaints were not consistently complained about until July 2005 almost a year after the incident.”
However, at [35] the Arbitrator says:
“Under opinion, Dr Matalani is less equivocal however he is expressing his views very generally other than his opinion of Mr Tizzone’s back condition. In this regards [sic] he opines that the back has deteriorated since he received his lump sum settlement in September 2005 and one reason for this is that his symptoms radiated to the left hip. This view is consistent with Dr Rao’s clinical notes which reveal that the hip symptoms become progressively worse from July 2005 onwards.”
This is a further issue primarily focussed on Mr Tizzone’s back injury, and the manifestation of it. While it may be the case that Mr Tizzone’s hip became progressively worse from July 2005, that does not discount the fact that a proper consideration of the evidence points to a continuous history of hip discomfort, pain and treatment from the date of the injury, and arising from that injury, up to and beyond 5 July 2005. In the face of that evidence, it was not open to the Arbitrator to find that there was no complaint and no evidence of hip symptoms in that intervening period.
The worsening of Mr Tizzone’s hip symptoms is not incompatible with ongoing symptoms arising from the injury on 16 August 2004, particularly in light of the fact that there is no evidence of any subsequent injury to his hip. Even if it is accepted that there was radiated pain to the left hip from Mr Tizzone’s back injury, that is no basis alone, for regarding the hip injury sustained on 16 August 2004, and its impact, as having ceased. In my view, the evidence does not support the proposition or the Arbitrator’s finding that the effects of the injury sustained on 16 August 2004 had dissipated either prior to or after 5 July 2005.
Specifically, the evidence does not support the Arbitrator’s statement at [39], “In my view the medical evidence does not provide a sufficient explanation for why there was an intervening period of close to a year between when he initially sustained the injury and when he complained to his doctor.” Having regard to the evidence traversed above, this is not the case. As previously stated, the Arbitrator’s finding, at [40] of her Reasons, that the aggravation (injury) caused by the incident on 16 August 2004 had ceased by 6 March 2007 [or at all], is not supported by the evidence and the weight, properly, to be attached to it.
In summary, the evidence and associated facts do not rebut the presumption of continuance, and furthermore, the Arbitrator’s observations and formal finding in this regard, are not supported by a proper consideration of the evidence and the weight of the evidence.
Accordingly, the Arbitrator has erred and this ground of appeal is successful.
Paragraph 1 of the Arbitrator’s decision must be revoked in light of the error. While it is open to remit the matter to the Arbitrator for re-determination, it is more appropriate in the circumstances that I formally determine the matter and substitute a new order in place of the order made by the Arbitrator (see Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344).
Having regard to, and based upon, the evidence and circumstances outlined in these Reasons, I am satisfied that the need for the treatment and the type of treatment sought and obtained by Mr Tizzone flows from the injury sustained by him on 16 August 2004; that there has been no intervening incident giving rise to injury of Mr Tizzone’s left hip; that the condition and degeneration of his left hip and the need for surgery necessarily arises as a result of the injury sustained by Mr Tizzone, on that date. I find accordingly.
The Commission’s jurisdiction to make a general order for payment of medical expenses pursuant to section 60 of the 1987 Act is not constrained by its current lack of jurisdiction to make a declaration under that section (Olympic Fencing (NSW) Pty Limited v Crossley [2007] NSWWCCPD 121). Accordingly, I propose to make the appropriate general order.
DECISION
The appeal is successful. Paragraph 1 of the Arbitrator’s decision of 12 October 2007 is revoked, and the following order is made in its place:
1. The Respondent Employer is to pay the Applicant Worker’s reasonable and necessarily incurred section 60 of the Workers Compensation Act 1987 expenses upon production of accounts and/or receipts.
Paragraph 2 of the Arbitrator’s decision of 12 October 2007 is confirmed.
COSTS
The Respondent Employer is to pay the costs of appeal of the Appellant Worker.
Gary Byron
Deputy President
6 February 2008
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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