Toll Pty Ltd v Bartimote
[2007] NSWWCCPD 153
•11 July 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Toll Pty Limited v Bartimote [2007] NSWWCCPD 153
APPELLANT: Toll Pty Limited
RESPONDENT: Mark Bartimote
INSURER:Self insurer
FILE NUMBER: WCC7814-06
DATE OF ARBITRATOR’S DECISION: 28 November 2006
DATE OF APPEAL DECISION: 11 July 2007
SUBJECT MATTER OF DECISION: Report of injury and claim for compensation; review of factual errors; application of the ‘disease’ provisions
PRESIDENTIAL MEMBER: Acting Deputy President Michael Snell
HEARING:On the papers
REPRESENTATION: Appellant: Leigh Virtue & Associates
Respondent: M J Duffy & Son
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 28 November 2006 is confirmed.
The referral to an Approved Medical Specialist provided for in that decision should be in accordance with these reasons.
The Appellant Employer is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
1.On 22 December 2006 Toll Pty Limited (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 28 November 2006.
2.The Respondent to the Appeal is Mark Bartimote (‘the Respondent Worker’).
3.The Respondent Worker was born on 7 February 1962, his wife works part-time as a teacher, and the Application to Resolve a Dispute (‘the Application’) claims weekly compensation on the basis he has four dependant sons. His statement dated 8 February 2006 describes him leaving school in 1978 at sixteen years, after completing the School Certificate. He completed an apprenticeship and qualified as a fitter and turner. He then worked variously as a fitter, truck driver, gymnasium manager, machinist, wool presser, and operator of haymaking equipment. This was punctuated by periods of study, youth work and counselling, in Tasmania and New Zealand, connected with his Christian beliefs. He commenced working as a truck driver with Finemores Pty Limited on about 18 May 1993, driving interstate vehicle transporters. He describes this as “hard physical work involving loading and unloading and driving for up to 10 hours per shift”. The statement describes Finemores Pty Limited as changing its name to Toll Pty Limited (the Appellant Employer) at an unspecified time. It is not suggested in these proceedings that anything flows from this name change (assuming that is what occurred).
4.The Application pleads an incident of 18 November 1998, when the Respondent Worker “fell from a Stinger car carrier”, allegedly injuring his left shoulder, neck and head. The Respondent Worker’s statement describes him being off work for approximately three weeks after this incident, and says his “claim was accepted”. The Application also pleads injury to the neck resulting from the “nature and conditions of employment as a Truck Driver” from November 1998 to 15 July 2004. It describes the date of this claim as 7 July 2003. The Respondent Worker’s statement says the Appellant Employer “initially accepted liability” for this claim. It says the Respondent Worker was placed on “restricted duties” from 4 July 2003, until 26 March 2004, when the Appellant Employer denied liability for further benefits. Weekly compensation was paid to 10 April 2004.
5.The Application claims weekly compensation at the rate of $700.00 per week from 10 April 2004, on an ongoing basis, a general order for the payment of expenses pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’), and lump sum compensation pursuant to sections 66 and 67 of the 1987 Act in respect of 30% permanent impairment of the neck, 15% loss of use of the left arm at or above the elbow, and 14% whole person impairment.
6.The matter proceeded to arbitration hearing on 16 August 2006. Both parties were represented by counsel. The Appellant Employer, as a preliminary matter, submitted the Commission did not have jurisdiction to entertain the Application, to the extent the claim form originally lodged in respect of the 1998 incident did not specify injury to the neck, which was now claimed to result from that incident. This jurisdictional argument (which remains in issue on this appeal) was objected to by the Respondent Worker’s counsel, on the basis it had not been clearly raised previously (see T5.35). The upshot of this was that the arbitration hearing was stood over, for hearing on 31 August 2006.
7.The matter resumed on 31 August 2006. The Respondent Worker relied upon a further statement dated 24 August 2006, utilised, at least in part, to combat the jurisdictional argument raised on 16 August 2006. Both parties outlined the documentary material on which they relied, and made submissions. No oral evidence was called. The Arbitrator reserved his decision.
THE DECISION UNDER REVIEW
8.The ‘Certificate of Determination’, dated 28 November 2006 records the Arbitrator’s orders as follows:
“1. That the Applicant be referred to an AMS.
2. That the Respondent pay to the Applicant weekly payments of compensation in the sum of $329.73 from 10 April 2004 to date and continuing in accordance with the provisions of the Workers Compensation Acts.
3. The Respondent pay the Applicant’s costs as agreed or assessed.
4. That this matter be certified as complex.”
9.The Certificate of Determination was accompanied by a Statement of Reasons.
ISSUES IN DISPUTE
10.The issues raised by the Appellant Employer in the appeal are:
(i)Whether the Arbitrator erred in determining he had jurisdiction to determine the dispute arising out of the incident of 18 November 1998, in respect of injury to the neck?
(ii)Whether the arbitrator erred in determining he had jurisdiction to determine any allegation of injury to the left shoulder, arising out of the allegation of injury due to the ‘nature and conditions’ of employment?
(iii)Whether the arbitrator erred in finding the Respondent Worker suffered injury to the neck? It is also submitted the reasons in this regard were inadequate.
(iv)Whether the Arbitrator erred in finding section 9A of the 1987 Act was satisfied?
(v)Whether the Arbitrator erred in referring the permanent impairment claims to an approved medical specialist (‘AMS’)?
11.The Respondent Worker submits the notice of injury and claim provisions of the workers compensation legislation were sufficiently satisfied, such that the Commission had jurisdiction to deal with the pleaded claims. He submits the fndings of injury to the neck and left shoulder were properly available on the evidence, and do not reveal error. He submits the referral of the lump sum claims to an AMS, whilst it contains two errors as regards dates, was properly made, and the referral of the claim in respect of the left shoulder injury of 18 November 1998 was not opposed by the Appellant Employer on the arbitration hearing. Overall, it is submitted the appeal should be dismissed.
ON THE PAPERS REVIEW
12.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.”
13.The Appellant Employer submits the matter should be determined after an oral hearing, rather than on the papers. Two reasons are proffered. The first is that “this is a the (sic) category of case which would justify an oral hearing where the parties can address and assist the Presidential member”. This submission is not elaborated on. The second stated reason is that “submissions and grounds of appeal can be finalized after receipt of transcript and other documents (which have not yet been provided)”. The transcript has now been available to the parties since 9 January 2007. Correspondence from the Commission making the transcript available to the parties, specifically advised they should complete and lodge submissions and grounds of appeal, if these were awaiting transcript. The “other documents” are not specified. Thus the Appellant Employer’s submissions do not specify in what way this particular appeal would benefit from an oral hearing. The Appellant Employer has had ample time in which to file further submissions and/or amended grounds of appeal, since the transcript became available, if it wished. It initially filed twenty-two pages of written material in support of its position on the appeal.
14.The Respondent Worker submits the appeal can be determined on the papers.
15.Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Respondent Worker 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
16.Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
17.The sum awarded significantly exceeds the figure of $5,000 prescribed in section 352(2)(a) of the 1998 Act. The whole of that award is challenged on the appeal. The Respondent Worker does not dispute the threshold provisions in section 352(2) are satisfied.
18.The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
19.Leave to appeal is granted.
DISCUSSION AND FINDINGS
The Nature of the Review Process
20.In Westpac Banking Corporation v Kilby & Bananacoast Credit Union Ltd [2005] NSWWCCPD 24 Byron DP at [54] said:
“As stated in South Western Sydney Area Health Service v Edmonds [2005] NSW WCC PD 18, the weight and relevance to be given to evidence before an Arbitrator is a matter in the discretion of that Arbitrator. The decision of the Arbitrator should not be overturned unless it can be demonstrated that the Arbitrator has failed to exercise that discretion fairly and according to law. This may occur when an Arbitrator has acted upon an incorrect legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts, or failed to take into account relevant and material considerations, (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, and In the Matter of National Roads and Motorists Association Ltd [2003] FCAFC 206 at [21]).
21.The review process is broader than correction of error of the kind identified in House v The King. In Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 (‘Zheng’) Bryson JA at [38] said:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
22.This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (‘Edmonds’) at [134].
Jurisdiction – Injury to the Neck on 18 November 1998
23.The first jurisdictional point raised by the Appellant Employer, is an argument the ‘notice’ and ‘claim’ provisions in the workers compensation legislation were not complied with, as regards the neck injury alleged to have resulted from the incident of 18 November 1998. It is submitted that, as a consequence, the Commission did not have jurisdiction to deal with this aspect of the Respondent Worker’s claim.
24.The Respondent Worker completed and lodged a claim form in respect of this incident. It is dated 19 November 1998, and has a ‘received’ stamp on it indicating it was received (I infer by the Appellant Employer) on 26 November 1998. It describes the incident as “Slipped while climbing on deck 8 of stinger in the process of unloading”. The injuries suffered are described as “Lacerated scalp, bruising.”. The parts of the body affected are described as “scalp, left elbow, left thigh and shoulder, right wrist area” (the Appellant Employer describes these a little differently at page 6 of its submissions, depending on how one reads the two lines written in the document; nothing turns on the variation). The neck is not specifically mentioned.
25.The Respondent Worker subsequently underwent medical examinations at the behest of his employer from time to time. These appear to have been a normal concomitant of his employment, not necessarily related to his accident of 18 November 1998. These examinations involved the Respondent Worker completing and signing a questionnaire, which gave the medical examiner permission to convey the results of the examination to the Appellant Employer. The first such questionnaire completed after 18 November 1998, is dated 11 March 1999. At A35 of that document the Respondent Worker described his injury “fell of (sic) car carrier in wet and landed on arm and head”. At A37 of the document the question is posed “Do these injuries still affect you in any way?” to which the Respondent Worker has answered “At times head is still sore. Neck can be stiff and is notchy. Left leg has a numb patch on skin.” At A29 of the document the Respondent Worker described experiencing “back or neck pain” in the “last year’, and added “related to accident (workers comp.)”. On the next examination, dated 26 July 2000, the Respondent Worker at A29 described having experienced neck pain “7 times or more” in the “last year”.
26.The Respondent Worker lodged a further claim form dated 9 July 2003, marked “Received 15 July 2003” (I infer by the Appellant Employer). That document described a date of injury as 13 March 2003, and described the injury suffered as “aggravated neck”. It described a cessation of work on 4 July 2003. Under the heading “What Happened” it described the following:
“When I drive trucks my neck becomes stiff and painful. This injury has become progressively worse. On 13-3-2003 I saw Dr G Albert (Ron Cowman gave me permission)”
27.There is a letter from the Appellant Employer to the Respondent Worker dated 26 March 2004, which refers to the claim for benefits “for injuries sustained on 13 March 2003”, and advises liability for further benefits is denied from the date of the letter, based upon a medical report of Dr Crane. It states weekly benefits will be paid for a further two weeks.
28.The Appellant Employer argues the ‘notice’ and ‘claim’ provisions were not complied with as regards any neck injury resulting from the incident of 18 November 1998, and consequently the Commission does not have jurisdiction to entertain that part of the claim. It is apparent a claim form and notice were given, as regards the occurrence of the event of 18 November 1998.
29.The Appellant Employer refers to two authorities in support of its submission. The first is Kurrajong Holdings t/as The Gardeners Inn v Carrette [2004] NSWWCCPD 8 (‘Carrette’). In that matter the worker alleged injury when she attended the employer’s premises to collect her workers compensation payments in relation to an earlier injury. It was claimed that, whilst doing this, she was physically and verbally abused by the employer’s general manager and his girlfriend, causing a new injury of a psychological nature. Proceedings were commenced in the Commission in respect of this new injury, in the absence of a claim form being lodged in respect of it. Fleming DP said:
“55. There is no evidence that a claim for compensation was subsequently made on the employer/insurer by Ms Carrette. Ms Carrette relied upon the submission of WorkCover medical certificates to the insurer relating to the injury and the subsequent filing of the ‘Application to Resolve a Dispute’ in the Commission.
56. Section 260 of the 1998 Act provides that a “claim must be made in accordance with the applicable requirements of the Workcover Guidelines”. This reference is to the ‘WorkCover Provisional Liability and Claims Guidelines’, December 2001.
57. The Guidelines provide that a worker who wishes to press a claim for weekly benefits or medical expenses compensation must make a claim, in the prescribed form, if provisional payments are not made or the insurer requests that a claim be made (Guidelines Part 2, 1.1). The information that must be provided on a claim, and the requirements for the making of a claim are extensive and are set out in the Guidelines.58. The Act and the Guidelines do not provide for the lodgement of an application to resolve a dispute in the Commission in the absence of the making and determination of a claim by the worker on the relevant employer and insurer. This is the case regardless of the fact that the Commission may have determined an application for an Interim Payment Direction.
59. On the documents before me on the appeal, and the submissions of the parties, I am satisfied that the Appellant Employer’s submission, that no claim has ever been properly made in this matter, is correct. The Arbitrator therefore did not have jurisdiction to determine the dispute.
60. This means that the orders are a nullity. If the Respondent Worker seeks to claim compensation from the employer a claim must now be made in accordance with the provisions of the 1998 Act and the Guidelines.”
30.The second authority relied upon is a decision of Roche ADP (as he then was) in Cottons Glass & Aluminium Pty Limited v Handsaker [2006] NSWWCCPD 205 (‘Handsaker’). In that matter there had been prior proceedings between the worker and the employer, in the Compensation Court of NSW, resulting in settlement of the worker’s lump sum entitlements, and also a number of proceedings commenced (and discontinued) in the Commission. However, the decision indicates there was no evidence a claim had ever been made in respect of the injury relied upon. Roche ADP, after discussing Carrette, said:
“33. In my opinion the same situation applies in the present case as no claim has ever been made. The Respondent Worker argues that this issue was not raised in the Reply. That is correct, but the Commission is not a court and is not bound by strict rules of pleadings. One of the purposes of having an early teleconference is to enable relevant legal or other threshold issues to be identified (see Procedural Tables 4.125). At the teleconference on 24 May 2006 the Appellant Employer disputed that the claim had been ‘duly made’. As there is no transcript of the proceedings at the teleconference it is impossible for me to know exactly what points were raised and how they were argued, but it is clear that the question of compliance with section 260 and the Guidelines was raised. Though no reasons have been provided on this issue, it is also clear that the Arbitrator ruled against the Appellant Employer on this issue. In my opinion the Arbitrator made an error of law in doing so in circumstances where the Respondent Worker had not complied with either the 1998 Act or the Guidelines. Though I have not formed a concluded view, I doubt that the insurer or Appellant Employer can waive compliance with the above provisions (as is suggested in section 260(6)) as they raise threshold jurisdictional issues that must be satisfied before the Commission can be properly seized of a matter.
34. In Carette the order made in favour of the worker under section 38 of the 1987 Act was held on appeal to have been made without jurisdiction as the proceedings were a nullity. In my opinion a similar order should be made in the present case.”
31.It should be noted that, in both Carrette and Handsaker, the evidence did not establish a claim had ever been made in respect of the events allegedly constituting injury.
32.The legislative framework through which the Commission obtains jurisdiction is concisely described by McColl JA in Edmonds at [61]:
“The procedures by which a worker makes a claim for compensation are set out in Chapter 7. A claim must be made in accordance with the applicable requirements of the WorkCover Guidelines: s 260(1). Where there is a dispute in connection with a claim for compensation between the person who makes the claim and a person on whom the claim is made, or the employer on whom the claim is made and the insurer on whom the claim is made, any party to the dispute about a claim may refer the dispute to the Registrar for determination by the Commission: ss 287, 288. However only a claimant may refer a claim for lump sum compensation to the Registrar: s 288(1). If a dispute is determined by the Commission the Commission must issue to the parties a certificate as to the determination attaching a brief statement of the reasons for the determination: s 294(1) and (2).”
33.The Appellant Employer’s submissions are based on an alleged failure on the part of the Respondent Worker to comply with his statutory obligations, as regards both notice of injury and claim for compensation, in respect of the neck injury allegedly received on 18 November 1998. The submissions rely upon either sections 61 and 65, or 254 and 260, of the 1998 Act, in the alternative.
34.Sections 254 and 260 are contained in Chapter 7 of the 1998 Act, and govern “New Claims Procedure’. The relevant sections commenced on 1 January 2002. Chapter 7 Part 2 (dealing with ‘notice of injury’), which includes section 254, applies only to injuries received after 1 January 2002 (section 252), and would have no application to the Respondent Worker’s injury of 18 November 1998.
35.Section 60A of the 1998 Act (which commenced on 1 January 2002) provides:
“(1) Sections 61–64 apply only in respect of an injury received before the commencement of this section (as inserted by the Workers Compensation Legislation Amendment Act 2001).
(2) Sections 65 and 66 apply only in respect of the making of a claim before the commencement of this section (as inserted by the Workers Compensation Legislation Amendment Act 2001).
Note. Chapter 7 (New claims procedures) provides for notice of injury and making of claims in all other cases.”
36.Thus sections 61 to 64 apply to the Respondent Worker’s obligation to give notice of his injury of 18 November 1998. Sections 65 and 66 apply to the making of the claim, if it was made prior to 1 January 2002. If not, then Chapter 7 Part 2 (including sections 260 and 261) governs the making of the claim.
37.The two Presidential decisions relied upon by the Appellant Employer, referred to above, were decisions where no claim had been made. In the current matter, there is no doubt a claim was made in respect of the accident of 18 November 1998, as evidenced by the claim form dated 19 November 1998.
38.As a consequence, Handsaker and Carrette, can be readily distinguished from the factual circumstances prevailing in the current appeal. There are two further relevant decisions of Roche ADP, which are of assistance. The earlier of these is Star City Limited v Hudson [2006] NSWWCCPD 288. In that matter the worker submitted a claim form in respect of “repetitive strain to left wrist”. She subsequently also developed right arm symptoms. Although not the subject of a further formal claim, the worker mentioned her right arm symptoms from time to time, to employees of the employer engaged in her rehabilitation. The employer argued the worker had not given notice of injury or made a claim for compensation in respect of the right arm, and consequently the Commission did not have jurisdiction to deal with a claim relating to the right arm. It is similar to the argument presented by the Appellant Employer in the current appeal.
39.Roche ADP rejected the employer’s argument the worker was precluded from the recovery of compensation by the notice of injury provisions in section 254 of the 1998 Act (the corresponding provision to section 61 of that Act), due to the operation of section 254(2) and 254(3). Roche ADP found ‘special circumstances’ within the meaning of section 254(3)(c), in that “the Appellant Employer had knowledge of the right wrist injury through its rehabilitation co-ordinator” (at [48]).
40.Roche ADP also rejected the employer’s argument the worker was obliged to lodge a further claim in respect of the symptoms in her right arm, so as to satisfy the claim provisions in section 260. He said:
“The Respondent Worker submits that the Guidelines do not require a separate claim be submitted on every occasion that further symptoms are experienced (Respondent Worker’s submissions 4 October 2006, paragraph five). I agree with that submission if the further symptoms have resulted from the initial injury. In the present case the evidence suggests that the right arm symptoms have resulted from the left arm injury. That evidence is from Dr Chiew in his certificate dated 30 October 2003 which I quoted at paragraph [7] above.” (at [67])
41.The Respondent Worker’s submissions refer to the decision of Roche ADP in Warwick Hobart t/as Terry White Chemists v Pietrzak [2006] NSWWCCPD 315 (‘Pietrzak’). Compliance by the worker with the ‘notice of injury’ and ‘claim’ provisions of the legislation was raised by the employer in its defence of that matter. The worker alleged injury to his neck and back in a specific incident. Notice of the incident had been given to the employer through the submission of medical certificates describing the incident, and containing a diagnosis of “laceration of scalp, concussion”. The employer’s argument, that the notice provisions had not been complied with as regards alleged injuries to the neck and back, was rejected, with Roche ADP saying:
“56. The term ‘injury’ in the 1998 Act means “personal injury arising out of or in the course of employment” (section 4 1998 Act). In the context of section 254 ‘injury’ means ‘injurious event’, not the pathology said to have resulted from the injurious event. A worker is not expected to know the exact nature and extent of his injury at the time of initial notification. Any other interpretation of ‘injury’ in this section would lead to the unsatisfactory situation of a worker who gives notice of an upper back strain being barred from claiming compensation in the event that medical investigations subsequently reveal that he or she in fact sustained a lumbar disc injury. There may well be arguments about causation, but provided the evidence supported a connection between the injurious event and the subsequently discovered lumbar disc lesion, the worker would not be barred from recovering compensation because he or she did not initially give ‘notice of injury’ for the correct body part.”
57. In the present case the ‘injurious event’ sustained by Mr Pietrzak was the blow to his head when the roller door struck him. If that event was reported then that is sufficient compliance with section 254. It puts the employer on notice and allows the employer to make its own investigations, medical or factual, into the incident and its consequences. If it is later alleged that a worker sustained more extensive or more serious injuries than were initially reported, then whether those injuries are the result of the original injury will be a matter to be determined on the evidence. However, the fact that a particular body part has not been referred to in the initial notification is not a bar to making a claim for compensation in respect of that body part.”
42.I accept this analysis of the operation of the ‘notice’ provisions. It is equally applicable to section 61 (which governs the 1998 injury in the current appeal) as to section 254 (which was in issue in Pietrzak). An interpretation of the ‘notice’ provisions, such that a worker would be under an obligation to comply with them afresh every time he developed, or made complaint of, a fresh symptom, resulting from an incident already the subject of notice, is an interpretation which should be rejected.
43.It follows from the above, I am satisfied lodgement by the Respondent Worker of the claim form dated 19 November 1998, was sufficient to satisfy the relevant ‘notice’ provisions in section 61 of the 1998 Act, and it was unnecessary that any further notice be given in respect of the symptoms involving the neck. If I am wrong in this, section 61(2)(c) would excuse any such failure in any event, as the Appellant Employer was given notice of the neck symptoms through the questionnaires completed by the Respondent Worker, as part of his medical assessments dated 11 March 1999 and 26 July 2000, described at [25] above. Accordingly, the Appellant Employer’s argument based upon the ‘notice’ provisions of the 1998 Act, in respect of the alleged neck injury sustained on 18 November 1998, fails.
44.At the time his claim form was lodged in respect of the incident of 18 November 1998, the Respondent Worker’s obligation to make a claim was governed by section 65 of the 1998 Act. The Appellant Employer does not contend the claim form did not constitute a ‘claim’, but argues a further claim was required, in respect of the injury to the neck.
45.I have already concluded the Respondent Worker lodged a claim form giving notice of injury, and making a claim, in respect of the incident of 18 November 1998. I have further concluded the Respondent Worker was not under any obligation to give further notice of the consequences of that injury extending to parts of the body additional to those referred to in the claim form. However if he were, that obligation was satisfied by the notice he gave of neck symptoms, on the medical reviews arranged by his employer.
46.The Respondent Worker made a claim for a different kind of compensation, lump sums pursuant to sections 66 and 67 of the 1987 Act, in the letter from his solicitors dated 6 July 2004, which also served the reports of Dr Bleasel. The Arbitrator concluded this claim was not an ‘existing claim’, and accordingly was governed by Chapter 7 of the 1998 Act.
47.Section 259(1) of the 1998 Act provides Chapter 7 Part 2 Division 2 of that Act (which includes section 260) applies to the making of a claim after its commencement, even if the injury concerned was received before that commencement. The claim for lump sum compensation would be caught by this provision, notwithstanding the prior valid claim. Section 261(3) provides:
“For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.”
48.The Arbitrator approached the matter on the that basis the Respondent Worker had not made a claim within the period required by section 261, and accordingly recovery of compensation was precluded by section 261(1), unless excused by section 261(4). He found it was excused by section 261(4). This approach, in my view, fails to recognise the fact that a valid claim had previously been made, within time, and section 261(3) took the date of that valid claim as the relevant date, for considering whether a claim had been made within time. Thus the recovery of compensation in respect of the incident of 18 November 1998 would not be precluded by section 261.
49.However it remained necessary that a valid claim be made pursuant to sections 66 and 67, in compliance with section 260. Section 260(1) provides a claim must be made in accordance with the WorkCover Guidelines. Part 2 Rule 6 of those Guidelines (which had application as at 6 July 2004 when the claim pursuant to sections 66 and 67 was made) describes the information to be included in a claim:
“What information from the worker is needed to make a claim?
6.1 Information about the worker:· Given and family names
· Residential address
· Date of birth
· Occupation
· Interpreter required, if yes language.
· Country of birth
6.2 Information about the employer
· Name
· Current business address
· ABN if known
· Policy number if known
6.3 Information about the treating doctor
· Name
6.4 Information about the worker’s employment
· Full time or part time
· Permanent or casual
· Gross pay per week
· Total hours worked per week
· Normal working hours
· Details of enterprise or workplace agreement or an award if known
· Date the worker started employment with the employer
· 2nd employers name and contact details if applicable
· gross pay per week from 2nd employer
· hours worked per week for 2nd employer
6.5 Information about the workplace injury
· Date and time of the workplace injury
· How the injury happened
· What part of the body is injured?
· Was this part of the body normal before the workplace injury?
· The address where the workplace injury happened
· Name of any witness to the workplace injury
· Name of person at workplace the injury was reported to
· Date the workplace injury was reported to the employer
6.6 Additional information
· Details of any previous similar injuries or conditions
· That may assist when determining the claim
· Worker’s declaration, see Part 2, rule 6.7.
What must the “worker’s declaration” include?
6.7 A declaration must be signed by the worker and must say words
that mean the same as:I certify that the information I have provided is correct. I consent to my insurer and its appointed service providers collecting personal information about me and using it for the purpose of assessing and managing my worker’s compensation claim, including determining liability and whether my claim is true. I consent to my insurer disclosing my personal information to medical practitioners, rehabilitation providers, investigators, legal practitioners and other experts or consultants for the purposes of assessing and managing my claim. I also consent to my insurer disclosing my personal details to the WorkCover Authority which is authorized to use this information to fulfil it’s functions under the NSW workers compensation
legislation. I understand that if any information I have given is untrue,
that my claim may be denied and that I may be prosecuted”
50.Additionally, the WorkCover Guidelines set out requirements relating to the claiming of compensation in respect of permanent impairment. The Guidelines having operation as at 6 July 2004, relevant to claims for lump sum compensation, are set out at pages 14 to 15 of the Appellant Employer’s submissions, and I shall not reproduce them here. They have since been replaced by a new form of WorkCover Guidelines which commenced on 1 November 2006.
51.The Respondent Worker’s claim may well have fallen within the definition of an ‘existing claim’ pursuant to section 250 of the 1998 Act. However even if it did, the operation of Regulation 224 of the Workers Compensation Regulation 2003 resulted in it being treated as a ‘new claim’ (see Pasminco Limited v Walters [2005] NSWWCCPD 30 at [54] to [56]). Valid claims had already been made for weekly payments of compensation resulting from both injuries relied upon. These did not need to be repeated. It was however necessary that the claim pursuant to sections 66 and 67 comply with section 260 of the 1998 Act, if it were to be validly made.
52.By the time of the letter claiming lump sum compensation, dated 6 July 2004, the Appellant Employer was already in receipt of two claim forms, and a considerable body of medical evidence. Although the correspondence dated 6 July 2004 did not contain all of the information referred to in the WorkCover Guidelines, such of the information as was not thus conveyed would already have been known to the Appellant Employer, through the two lodged claim forms, and the medical material both acquired by the Appellant Employer, and served upon it. By 6 July 2004 the Appellant Employer had reports, emanating from medical examinations it had arranged, with Dr McGill, rheumatologist (dated 7 August 2003), and Dr Crane, surgeon (dated 16 February 2004). It had reports from treating medical practitioners (addressed to it) from Dr Peterson, a general practitioner in Dubbo (dated 2 August 2003), and Dr Coroneos, neurosurgeon (dated 27 October 2003). It had reports from ‘Active Injury Management Specialists’ dated 22 July 2003, 21 August 2003, 5 September 2003 and 25 September 2003, going to the Respondent Worker’s rehabilitation. To this was added the report of Dr Bleasel, neurosurgeon (dated 11 June 2004) supporting the lump sum claim which was made. In so far as the relevant information was provided to the Appellant Employer in part in the two claim forms, and in part through other information available to the Appellant Employer, rather than in a further form designed for making a claim for workers compensation benefits, any such defect can be characterised as a “minor defect in form or style”, excusable pursuant to section 260(5) of the 1998 Act (see Pietrzak at [63] to [64]).
53.Thus, in my view, the Respondent Worker had complied with the relevant provisions of the 1998 Act for the purposes of giving notice of injury and making a claim. The Appellant Employer’s argument that the Commission did not have jurisdiction, to deal with that part of the claim relating to injury to the neck resulting from the incident of 18 November 1998, fails.
Jurisdiction – Left Shoulder Injury Resulting from ‘Nature and Conditions’
54.The Appellant Employer contends the Arbitrator erred in finding he had jurisdiction to deal with an allegation of injury to the left shoulder resulting from the ‘nature and conditions’ of the Respondent Worker’s employment. This is essentially the same argument as was made in respect of the allegation of neck injury occurring on 18 November 1998. The contention is that the claim form of 9 July 2003 referred to a neck injury only, so it does not comprise ‘notice’ or ‘claim’, to ground jurisdiction for an allegation of left shoulder injury.
55.The response of the Respondent Worker to this argument is to describe it as misconceived, as the allegation of injury resulting from ‘nature and conditions’ relates only to the neck, not the left shoulder. This is borne out by the pleadings. The injury details in the Application describe the incident of 18 November 1998 as allegedly causing injury to the left shoulder, neck and head. They describe the “nature and conditions of employment as a Truck Driver” as allegedly causing injury to the neck.
56.This is also consistent with the Arbitrator’s finding on injury. The only injury he found to have resulted from the ‘nature and conditions’ of the Respondent Worker’s employment, was “an aggravation of the diseased state of the Applicant’s neck, again accepting Dr Blake’s opinion” (at [57]).
57. Thus the Respondent Worker’s argument is valid; the appeal point is misconceived. There was no need for jurisdiction on an allegation of injury to the left shoulder resulting from the ‘nature and conditions’ of employment. It was a contention neither made by the Respondent Worker, nor accepted by the Arbitrator. Had such an allegation been made, the Commission would have had jurisdiction in any event, applying the reasoning set out above in respect of the neck injury alleged to have resulted from the injury of 18 November 1998.
The Finding of Neck Injury, and the Adequacy of Reasons for It
58.The Appellant Employer argues the Arbitrator erred in finding the Respondent Worker injured his neck, either “by way of any frank injury or as a result of the nature and conditions of his employment”. The Arbitrator’s findings on injury are in the following terms:
“56.I am prepared to accept that the Applicant had a frank injury on 18 November 1998. Whilst he had no symptoms at the time, those symptoms did gradually appear and were documented (see Annual Medical Review documents). There is some doubt as to the pathology of those symptoms but on balance I accept the opinions of Dr Blake as set out below. He seems to steer a middle course between the paucity of diagnostic evidence on the one hand and the accepted symptoms of the Applicant on the other.
57.Having regard to the Applicant’s statement, the history given in medical reports, I find that the Applicant sustained an injury resulting from the nature and conditions of his employment, that being an aggravation of the diseased state of the Applicant’s neck, again accepting Dr Blake’s opinion.
58.As I am not able to make a determination of the Applicant’s entitlements under section 66, I will refer the Applicant to an AMS to determine the percentage impairment suffered by the Applicant in respect of those injuries.”
59.At [69] of his Reasons the Arbitrator summarises his findings, in the course of which he sets out the following:
“On 19 November 2004 the Applicant received an injury to his left shoulder, neck and head arising out of or in the course of his employment as a driver with the Respondent. He also suffered injury to his neck with a deemed date of 15 July 2004 arising as a result of the nature and conditions of his employment with the Respondent.
The Applicant is entitled to non-economic loss payments under section 66 and possibly under section 67 of the 1987 Act arising out of those injuries. The Applicant will be referred to an AMS to determine the extent of those claims.”
60.The reference to “19 November 2004” is clearly an error, and should read “18 November 1998”.
61.Given the Arbitrator’s acceptance of the opinion of Dr Blake, it is necessary to make reference to the primary report of Dr Blake dated 25 January 2006. Dr Blake’s opinion on causation is set out at points (1) to (5) under the heading “Opinion”, at pages 3 to 4 of that report. The doctor opines
“1)History recorded is described above.
2)Nature and extent of the injuries sustained by Mr Bartimote in the accident on 18/11/98, are as follows:
Neck – In his 3m fall off the side of his truck in the rain, Mr Bartimote sustained a laceration to the top of his scalp requiring suture, and aggravated pre-existing degenerative changes in the cervical spine. The condition in his neck has continued to remain aggravated by the particular requirements of his job as a truck driver of larger vehicles, with the transmitted vibration and jarring. He continued driving but with increasing neck symptoms and needed to take pain tablets to keep driving, until March 2003…
Left Shoulder – Soft tissue injury occurred in his fall, with no evidence of any bone or soft tissue damage on investigation. His shoulder has recovered, does not trouble him now, and no abnormalities are identified on examination.
3)Mr Bartimote continues to suffer impairment from the aggravation of pre-existing degenerative changes in neck, as a result of his fall and employment as a truck driver.
4)As indicated, Mr Bartimote continued to suffer symptoms and increasing disability in his neck, initially due to his fall, but being sustained by the vibration forces which extend up the spine of a truck driver.
5)In my opinion Mr Bartimote’s employment as a truck driver was a substantial contributing factor to his ongoing neck impairment.”
62.It is apparent, from how the Arbitrator has expressed his findings, and from the opinion of Dr Blake which he accepted, that the Arbitrator found ongoing symptoms in the Respondent Worker’s neck, resulting from both the incident of 18 November 1998, and the subsequent work as a truck driver.
63.The way in which the finding regarding injury to the left shoulder is expressed is problematical. It is relatively uncontroversial that the Respondent Worker suffered an injury of some description to his left shoulder on 18 November 1998. To this extent the finding of left shoulder injury is appropriate. Arguably the Arbitrator has found the effects of that injury to the left shoulder had ceased prior to Dr Blake’s examination of the Respondent Worker on 19 December 2005. This would flow from the Arbitrator’s acceptance of Dr Blake’s opinion, if he was accepting that opinion in toto, rather than just in respect of the neck condition. It should have been expressed with greater clarity.
64.The way in which the finding regarding the left shoulder is expressed is unsatisfactory, and does leave doubt regarding precisely what was found. The grounds of appeal do not specifically challenge the finding regarding the left shoulder as one that should be reviewed. However the Appellant Employer’s submissions do raise the issue, at page 19. It is there submitted “the arbitrator has failed to make any specific findings in respect of injury (to) the left shoulder, either with respect to incapacity, or for the purposes of any referral to an AMS. It is submitted that any current symptoms in the worker’s left shoulder are not causally related to 18.11.98, even if there were symptoms at that time.” The submissions of the Respondent Worker deal with the issue. They refer to those passages regarding ‘injury’, referred to at [58] and [59] above. The Respondent Worker submits those findings constitute findings of fact which were available on the evidence, and do not constitute error. As the finding regarding left shoulder injury is of relevance, at least in part, to the referral to an AMS, I will deal with these arguments below, in that part of these reasons, going to the referral to an AMS.
65.The Appellant Employer challenges the factual finding of neck injury. The essential thrust of the Appellant Employer’s argument on this point is that contemporaneous histories, as recorded in medical reports and other documents, did not substantiate the existence of neck complaints following the incident of 18 November 1998. Reference is made to the following:
(i)The claim form dated 19 November 1998 does not refer to injury to the neck.
(ii)The report of Dr Coroneos dated 27 October 2003 describes the Respondent Worker coming under his care on 19 November 1998 at Sunnybank Private Hospital. The report refers to complaints of head injury, left shoulder problems, and left thigh and knee symptoms. He records “External appearance of the entire spine was normal and a full range of movement was noted by myself in the cervical, thoracic and lumbosacral spines”. He refers to the medical and nursing admission notes at the hospital, and the referral letter to him, as providing “no evidence of any neck symptoms, complaints or injuries being documented in the available records”.
(iii)The report of Dr Peterson, of the general practice at Dubbo, describes the Respondent Worker consulting Dr Dumbrell of that practice on 20 November 1998, 27 November 1998, 4 December 1998 and 11 December 1998, in connection with the fall of 18 November 1998. The complaints relate to the right wrist, left shoulder, left knee, head and ribs. The only reference to the neck is a note that neck examination was reported as being normal, on the first of these consultations. Cards produced by that practice detail a further consultation on 22 January 2001, which describes a history “fall 2 yrs ago onto L shoulder – rotator cuff injury – took a while to settle. 2/7 hit R elbow on bottom of pool – painful R shoulder improving”. There is no mention of any neck symptoms related to the 1998 fall, to which the opening part of the history would appear to relate.
(iv)It is said there is no reference to neck complaints until 2003, save for “a non specific reference in the Driver Annual Medical Review”. This is a reference to the employer medical examinations described at [25] above.
(v)The cards of the subsequent general practitioner, Dr Albert, commence in January 2003. There is a reference to the fall from a car carrier in an entry dated 14 March 2003, which describes the Respondent Worker as hurting his left shoulder in that incident.
66.There is other material which would aid the Appellant Employer’s argument in this regard:
(i) The WorkCover certificates of Dr Albert, which are attached to the Application, commence on 4 July 2003, and refer to a “Degenerative neck problem”, giving no specific date of injury. Dr Albert wrote a short report dated 27 March 2003 which records “Mr Bartimote presented to me with pain and stiffness around his neck region especially on movement with no neurological signs and symptoms for 3 years, he relates that to the accident that he had while on duty back on 19/11/1998 in Queensland, which according to the hospital report he sustained a left shoulder injury, scalp cut (had some sutures) with loss of consciousness, then after some time after that he started to complain of his neck problems that he saw me for.”
(ii)There is a report of Dr Taylor, orthopaedic surgeon dated 21 June 2003. He records a consultation on 20 June 2003, at which the Respondent Worker gives a history of the fall on 18 November 1998, saying “At that time he had no significant neck complaints”. He records “Approximately two years ago, without further incident, Mr Bartimote began to experience neck pain and particularly when he was driving his large trucks, as he does for his living. The symptoms have progressed and he states that by the end of the week he is having considerable difficulty. His neck pain, which is poorly located, appears after about one hour of driving.”
(iii)There are reports from John Robins, physiotherapist dated 26 November 1998, 3 December 1998 and 10 December 1998, forming part of the material produced by the practice of which Dr Dumbrell was a member. These refer only to left shoulder symptoms, and do not refer to neck symptoms.
67.The Respondent Worker’s statement dated 8 February 2006 asserts he injured his neck in the fall on 18 November 1998, and that he continued to experience neck pain thereafter (at [6] to [8]). A further statement dated 24 August 2006 records that at the time he completed his claim form on 19 November 1998 the Respondent Worker was “not aware that (he) had injured (his) neck on 18 November 1998”. This lack of awareness continued for “the first few weeks after the accident” He said he noticed “some pain and discomfort” in his neck, as he got more movement back in his arm (at [3] to [4]).
68.There is a body of medical evidence supporting the view reached by the Arbitrator on causation of the neck condition. Dr Bleasel recorded a history of the Respondent Worker being “stiff and sore all over” on his return to Dubbo after the fall. The history continues “He was only three weeks off work and he resumed his original duties, but he was aware of a crunching sound when he moved his head and neck…From mid 2002 until March, 2003, his neck pain increased and he then saw his doctor, Dr Dumbrell about it.” Dr Bleasel reached the following view regarding causation of the neck problem:
“As a result of the injury of November, 1998, Mr Mark Bartimote suffered a concussive head injury, direct injury to his left shoulder and, I believe, muculoligamentous injury to his neck and probable disc damage. His disabilities now chiefly concern his neck, although there is evidence of pain and restriction of movement of the left shoulder.
There is no doubt that his neck first began to trouble him after his injury and there is a note that he wrote in March, 1999, describing his neck symptoms.
The nature and condition of his work as a truck driver aggravated the problem caused by his injury and I believe the employment as a truck driver was a substantial contributing factor to his injuries.”
69.Dr Berry, general surgeon, recorded a history that, on discharge from hospital in Queensland on the day following the incident, the Respondent Worker “was discharged with a painful neck and left shoulder”. He records that thereafter “he has continued to work as a truck driver and he found over the years that the twisting and turning involved would result in increasing pain in the neck.” Dr Berry described the exact pathology in the neck as “problematical”, but concluded “I would therefore consider that the patient has had a discrete injury in 1998 and his subsequent neck problems are the result of aggravation of that injury by the nature and conditions of his work as a truckdriver.”
70.Dr Bosanquet, orthopaedic surgeon, on 3 September 2003 recorded a history of injury in the fall to the Respondent Worker’s “left side, specifically his elbow and ribs, left shoulder and neck”. He then records “In March 1999 he noticed problems in his neck and noticed a clunking sensation which was not painful…Since then he has noticed pain in his neck when he drives, particularly on the right side and after a couple of hours of being in the one position. He has not noticed any restriction of movement. When he is not driving he has no problems.” In a report dated 17 May 2004 Dr Bosanquet concluded “I would attribute his ongoing neck pain to the injury from 1998. His employment with Toll, as a truck driver was a substantial contributing factor.”
71.Dr Blake’s conclusions have already been set out at [61] above. The history regarding onset of neck pain, on which those views are based, was the following:
“His hand slipped and he fell out backwards approximately 3m down onto bitumen, with his left arm up over his head. He was knocked out, and woke up under the truck where he had been put for safety. He could not move his left shoulder more than a few degrees due to the pain, and he had a cut on the top of his scalp, and was confused with poor memory. He was taken to Sunnybank Hospital and admitted, due to concussion. The laceration on his scalp was sutured.
He was discharged the following morning, and drove his empty truck a 10 hour journey home, noting that by rocking his seat backwards he could change gear without moving his painful left shoulder. By the time he arrived home in Dubbo his neck felt really stiff, and he felt he was possibly in shock…
By 1 month after the fall his neck was gradually getting more notchy with noises noted on sideways movements, while his left shoulder was basically getting better.”
72.Dr Blake then recorded increasing neck symptoms associated with the Respondent Worker’s driving duties, with headaches emanating from the neck commencing in 2002, and increasing symptoms in 2002 extending into 2003.
73.The Appellant Employer, for its part, had a body of medical evidence which disputed the causal connection between the Respondent Worker’s neck symptoms, and either the incident of 18 November 1998, or the nature and conditions of the Respondent Worker’s duties as a driver. This was the view of Dr Crane, consultant surgeon, Dr Edwards, surgeon, Dr Smith, surgeon, Dr McGill rheumatologist, Dr Potter, rheumatologist, and Dr A Smith, orthopaedic surgeon. These medical practitioners had been furnished with at least some of the material referred to at [65] and [66] above, and were cognizant of the proposition there had been a delay in the onset of neck complaints after the incident of 18 November 1998. Although the reports of Dr Potter and Dr A Smith are contained in the Commission file, they were both served late, and are not listed at [12] of the Arbitrator’s Reasons, as part of the material in evidence for the purpose of his determination. The transcript does not contain reference to the Appellant Employer having sought leave to rely upon them, on the arbitration hearing. Whilst I have noted the existence of these reports, I will put them to one side for the purpose of considering this appeal.
74.The existence of a causal link between the pleaded injuries and the neck condition, particularly in light of the lack of corroborative histories of such symptoms in the months following the 1998 incident, was an issue on which the Appellant Employer’s counsel made submissions to the Arbitrator. The Arbitrator’s reasons for accepting the opinion of Dr Blake, and consequently making the finding on causation of the neck symptoms set out at [58] and [59] above, do not, in my view, adequately deal with the material which went to the existence or otherwise of neck symptoms subsequent to the 1998 incident, and its significance. In a recent decision of the NSW Court of Appeal, The Nominal Defendant v Kostic [2007] NSWCA 14, a significant issue was the extent to which a judge’s reasons adequately exposed his reasoning process, in preferring one of the competing medical views on causation. Ipp JA said:
“The first point to notice is that the judge made no express findings as to what I have described as critical factual issues. These concerned the date when the respondent first experienced lower back pain, the degree and extent of the back pain she first experienced and the progress of the pain, and the date when the respondent first reported to a medical practitioner that she was experiencing lower back pain. It is not possible to determine whether the judge addressed these issues in an informed and appropriate way (or at all). It is also not possible to comprehend how, without making findings on these issues, the judge could properly resolve the medical dispute between Dr Bleasel on the one hand and Dr Pierides (supported by Dr Harvey-Sutton) on the other.” (at [20])
75.The need for such fact finding was important, in part, to determine which of the competing medical views were entitled to weight, having regard to the extent to which the histories on which they were based were consistent with the facts ultimately proven: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR (‘Makita’) at [64] to [67]. The Arbitrator was clearly aware of the conflict in the medical evidence, and of the contemporaneous material which cast doubt on whether the Respondent Worker suffered from neck symptoms in the months after 18 November 1998. He described the medical evidence, including the reports of Dr Peterson and Dr Coroneos, in some detail at [20] to [21] of his Reasons. However his Reasons do not adequately deal with the extent to which the Respondent Worker suffered from neck symptoms in the months after the 1998 incident, when such symptoms commenced, the pattern of the symptoms subsequently, and the significance of such matters to the acceptability of the competing medical views on causation. This, in my view, constitutes error, which requires that I review that part of the decision. No oral evidence was given before the Arbitrator, the Arbitrator did not make credit findings, and I am in as good a position as the Arbitrator to deal with this question.
76.There is some tension between the two statements of the Respondent Worker, on the question of when his neck symptoms commenced. The earlier statement, dated 8 February 2006, describes him as injuring various body parts, including the neck, in the 1998 fall (at [6]). It does not actually say he was conscious of neck symptoms in the period shortly after the fall. It does imply this, saying “I continued to experience pain in my neck following the accident on 18 November 1998. The neck pain would come on whilst I was truck driving.” (at [8]). The second statement, dated 24 August 2006, relevantly says:
“When I filled out my claim form given to me by my employer on 19 November 1998, I completed the claim form as fully as I could at the time. At the time I was not aware that I had injured my neck on 18 November 1998. My neck was stiff when I got back to Dubbo on 19 November 1998, but it was not sore at that stage…
“The worker correctly submits that the words ‘employment concerned’ in s 9A reinforce the view that it is the work activity in which the worker was engaged at the time of the injury that is relevant. The ultimate question is whether that activity or task was a substantial contributing factor to the injury, bearing in mind that the concept of a ‘substantial contributing factor to an injury’ is exegeted in subss (2) and (3) of s 9A.” (at [22])
104.On the view of the medical evidence which I have preferred, this question also should be answered positively. The Respondent Worker’s duties were described, in evidence which is unchallenged, as “hard physical work”. He carried out such duties for in excess of ten years, prior to submission of the claim form dated 9 July 2003, claiming “aggravated neck”. The medical histories, including some (Drs Albert and Taylor) initially given outside the context of any proceedings, described a clear association between such duties, and the onset or worsening of the cervical symptoms. I accept the Respondent Worker’s employment as a truck driver was a substantial contributing factor to the aggravation of his cervical disc disease.
105.This leaves the fourth question, did incapacity result from the aggravation? The Arbitrator made a finding, at [60] of his Reasons, that partial incapacity resulted from the injuries found. The finding on causation has not been challenged by the Appellant Employer in this appeal. However, as the findings I have made on ‘injury’ are at variance with those made by the Arbitrator, it is appropriate that I briefly revisit the question of causation. Having regard to the temporal association between the Respondent Worker’s duties and his cervical symptoms, the lengthy period of physical work carried out with the Appellant Employer, and the history of ongoing neck symptoms (which I accept) since a relevant claim was made by claim form dated 9 July 2003, I prefer the medical evidence on the Respondent Worker’s behalf, particularly that of Dr Blake, to that relied upon by the Appellant Employer. I note Dr Blake was of the view, expressed at page 4.4 of his report, that the Respondent Worker continued to suffer impairment from the aggravation of pre-existing degenerative changes in the neck, as a result of his fall and employment as a truck driver. Although I have found the fall in 1998 did not cause injury to the Respondent Worker’s neck, I accept Dr Blake’s opinion that employment as a truck driver has caused ongoing aggravation of the degenerative neck condition.
Section 9A
106.The Appellant Employer raised, as a separate ground of appeal, an argument the Arbitrator had erred in finding section 9A to have been satisfied in the matter. I have dealt with the question of the operation of section 9A in the circumstances, relevant to the neck injury, as part of my reasons dealing with the application of the ‘disease’ provisions. I do not need to deal with it further. Section 9A could not represent a serious area of contention as regards the fall on 18 November 1998, which I will deal with subsequently, in a different context.
The Referral to an Approved Medical Specialist (AMS)
107.The Appellant Employer refers to the passage of the Arbitrator’s reasons at [69], quoted at [59] above, and challenges the order referring the matter to an AMS. The following difficulties are identified in that order:
(i)The date of injury referred to, 19 November 2004, is not relevant on the evidence;
(ii)The date nominated as the deemed date of injury resulting from the nature and conditions of employment, 15 July 2004, similarly is not of relevance, on the evidence.
108.The date 19 November 2004 is clearly a simple error; this should be a reference to 18 November 1998, the date of the Respondent Worker’s fall.
109.The reference to 15 July 2004 is a reference to the date on which the Respondent Worker’s claim form for neck injury, resulting from the nature and conditions of his work, was received by the Appellant Employer. However the year is misstated; the true date the document was received by the Appellant Employer was 15 July 2003.
110.Section 16(1) of the 1987 Act provides a mechanism for fixing a deemed date of injury, in cases involving the aggravation, acceleration, exacerbation or deterioration of a disease:
“(1)If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:
(a) the injury shall, for the purposes of this Act, be deemed to have happened:
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
111.The Respondent Worker’s statement says that, from 4 July 2003, he was marked fit for suitable duties, no driving, by Dr Albert, and then performed restricted duties at the Gilgandra depot (at [11]). It does not appear he necessarily suffered a loss of wages at this point, such as to result in an entitlement to weekly compensation of some description, notwithstanding there was incapacity, in the sense of the decision in Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171. Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277 dealt with the fixing of a deemed date of injury pursuant to section 16(1). Hodgson JA said:
“Berkeley Challenge shows that, if the claim under consideration is for weekly compensation based on incapacity, the relevant incapacity for the purposes of s.16(1)(a)(i) is incapacity giving rise to entitlement to weekly compensation. Thus, in such a case, incapacity first occurs when the physical incapacity results in some loss of wages, even if there had previously been incapacity in the Arnotts sense, not resulting in any loss of wages.” (at [37])
112.As incapacity had not resulted, in this sense, from the neck injury caused by the work duties, prior to the date of the claim for compensation, the appropriate deemed date of injury is the date of that claim. The date that claim was received by the Appellant Employer, 15 July 2003, is the appropriate deemed date of injury.
113.The injuries alleged to have been suffered in the fall of 18 November 1998 were injury to the neck, left shoulder and head. The head injury has not, on the evidence, had long term consequences. I have already, in reviewing the Arbitrator’s decision regarding the neck, found the Respondent Worker did not injure his neck in that fall. There is no allegation the left shoulder was injured other than in that fall.
114.The finding of left shoulder injury does not make clear whether the Arbitrator found there to be ongoing symptomatology in the shoulder resulting from the fall of 18 November 1998. This it needed to do. It is only in the presence of a finding of ongoing symptoms resulting from the injury, that it would be appropriate to refer to an AMS the question of whether there was a permanent loss of use of the left arm at or above the elbow, resulting from the injury of 18 November 1998. It has frequently been held that findings of injury and causation are questions for an arbitrator to decide, rather than matters which should be determined by an AMS (see Ooi v NEC Business Solutions Limited [2006] NSWWCCPD 131, and the decisions quoted therein at [36] to [40]). Having regard to the difficulty in how the finding in respect of left shoulder injury is expressed, it is necessary I review that finding.
115.There is clear evidence the Respondent Worker injured his left shoulder in the fall. It is referred to in the claim form dated one day after the injury, and is confirmed by treating medical practitioners at the time, including Dr Coroneos, Dr Dumbrell (described in Dr Peterson’s report), and Mr Robins (the physiotherapist). A radiology report of Dr Welshman dated 1 December 1998 reports a left shoulder ultrasound demonstrated no evidence of abnormality. Dr Dumbrell’s notes record treating the shoulder up to 11 December 1998. By that time Dr Dumbrell recorded “L shoulder movts v. good. Physiotherapy with return to work. Clearance for work + heat wheat, Panadol, Voltaren gel for shoulder”. The last recorded consultation by the Respondent Worker with the physiotherapist, Mr Robins, was on 10 December 1998, when he recorded:
“Thank you for referring Mark Bartimote for physio to his L shoulder.
Mobility is much better. Flexion & abduction were good. Internal rotation is improved.
I think he is ready for his normal job exercising caution.”
116.The next recorded medical examination of the Respondent Worker is the employment medical of 11 March 1999, referred to at [25] above. The answer at A37, to a question regarding whether the injury in the fall still affects the Respondent Worker in any way, is quoted at [25]. It does not refer to ongoing complaints in the left shoulder. The question at A18 invites the patient to tick conditions he has had, or now has. The entry for “joint or bone problems” is not ticked. The next medical consultation recorded in the material is the employment medical examination of 26 July 2000. On that occasion the questionnaire is ticked at A18, and the Respondent Worker has written in “Knee (occurred in last month)”. At A35 the Respondent Worker describes the fall of 1998 as “head and shoulder injury”, and when asked at A37 whether the injury still affects him in any way, has written “Knees quite sore”. Again there is no reference to ongoing left shoulder complaints.
117.There is then an entry in the notes of the practice of which Dr Dumbrell had been a member, dated 22 January 2001. This records symptoms in the right elbow after an unrelated incident in a pool, and a forthcoming trip to the Philippines. By way of history it records:
“Fall 2 yrs ago onto L shoulder – rotator cuff injury – took a while to settle”.
118.There is an unrelated entry in Dr Albert’s cards on 17 January 2003, followed by an entry on 14 March 2003, in which he gives a history of the fall. He describes having injured his left shoulder. He complains to Dr Albert then of neck symptoms and tension. There is the short report of Dr Albert dated 27 March 2003,which describes a presentation to him of pain and stiffness around his neck region. That report does not mention any ongoing left shoulder complaints. There is then a report of Dr Taylor, an orthopaedic surgeon to whom the Respondent Worker was referred by Dr Albert, dated 21 June 2003. The complaints to him at that stage relate to the neck, there is no mention of ongoing left shoulder complaints.
119.Dr Bosanquet, orthopaedic surgeon, examined the Respondent Worker on 3 September 2003. He recorded a history of the left shoulder injury in the fall. However the current symptoms he recorded related to the neck. In so far as the shoulder was concerned, he recorded “full movements in both shoulders and elbows”. Dr Bosanquet re-examined the Respondent Worker on 28 April 2004. Again the current symptoms recorded were relevant to the neck, rather than the left shoulder. Again he noted “full movement in his shoulders”. He assessed an ongoing problem in the neck, but not the left shoulder.
120.Dr Crane, surgeon examined the Respondent Worker on 13 February 2004. The only symptoms he recorded as representing the “current situation” related to the neck. The Respondent Worker thereafter was examined by a number of doctors in connection with the current claim. Some recorded some left shoulder complaints at a very low level. For example, Dr Edwards was told “he might get some discomfort in his left shoulder at the extreme of forward elevation, abduction and internal rotation”. Dr Berry recorded “He has mild shoulder symptoms and the shoulder feels slightly stiff”. The Respondent Worker’s “present state” as recorded by Dr R Smith related only to complaints to the neck and groins. On 9 June 2004 Dr Bleasel did not describe left shoulder complaints under the list of “present symptoms”, but did find some limitations of movement. Dr Blake recorded being told “By the end of the three weeks (after the fall) his left shoulder had recovered to a reasonable level”. At the examination on 19 December 2005 Dr Blake was told the left shoulder “does not trouble him with normal use”. There was no abnormality on examination of the left shoulder. Dr Blake concluded “His shoulder has recovered, does not trouble him now, and no abnormalities are identified on examination”. On the same date the Respondent Worker was examined by Dr Berry, who recorded a ten degree restriction of abduction and internal rotation.
121.Dr Bleasel assessed the Respondent Worker as suffering fifteen per cent permanent loss of use of the left arm at or above the elbow. He apportions this loss (and that he assessed of the neck) between the 1998 fall and “Toll Pty Ltd” (which I infer to mean the ‘nature and conditions’). The left arm problem was not, in the Application, alleged to result in any way from the ‘nature and conditions’ allegation. Dr Berry assessed ten per cent permanent loss of use of the left arm at or above the elbow. None of the other medical practitioners who reported in the case assessed any permanent loss of use of the left arm at or above the elbow.
122.One of the continuing problems described by the Respondent Worker in his statement of 8 February 2006, was “Pain and restriction of movement of my left shoulder”. The statement of 24 August 2006 concerns itself with the neck complaints, and makes little reference to the left shoulder. This is at least partially explicable, on the basis the second statement was brought into existence in response to the Appellant Employer’s argument regarding the jurisdictional basis for the neck allegation.
123.On balance, I do not accept the Respondent Worker continues to suffer from ongoing symptoms in the left shoulder, as a result of the fall of 18 November 1998. The complaints recorded by Dr Dumbrell, and the physiotherapist Mr Robins, in late 1998, do not preclude some relatively minor symptoms at the time the Respondent Worker resumed work in December 1998. However such complaints were pitched at a very low level, and did not prevent the Respondent Worker resuming his employment as a full-time truck driver, an occupation he has described as “hard physical work”. At the employment medical examinations on 11 March 1999 and 26 July 2000, no mention was made of ongoing symptoms in the left shoulder, in circumstances where other symptoms (such as the neck and knee problems) were raised by the Respondent Worker in the questionnaires. The Respondent Worker has had no medical treatment for the left shoulder, subsequent to the initial treatment in 1998. It is only mentioned to doctors examining him in a medico-legal context, and not to all of them. The ultrasound carried out on 1 December did not reveal an abnormality in the shoulder. Of the two doctors who assess a permanent loss resulting from the shoulder injury, Dr Bleasel does not proffer a diagnosis. Dr Berry opines there was a rotator cuff injury, although this was not apparent on the ultrasound examination of 1 December 1998. It is also significant that Dr Berry and Dr Blake examined the Respondent Worker on the same day, 19 December 2005. Dr Berry, a general surgeon, found some relatively slight restrictions of movement, and he based his opinion on permanent loss on that examination (see his supplementary report dated 20 December 2005). Dr Blake, an orthopaedic surgeon, whose views I have found helpful in considering the question of neck injury due to the nature and conditions of employment, recorded the shoulder no longer troubled the Respondent Worker, and found no abnormalities on examination of it. I prefer the opinion of Dr Blake on this point. I also find the view of Dr Blake on the point generally consistent with the lack of chronicled complaint regarding the shoulder, since late 1998. Accordingly, I find the Respondent Worker does not suffer from any ongoing symptoms in his left shoulder, resulting from the injury sustained on 18 November 1998.
124.It is necessary there be referral to an AMS, of the degree of whole person impairment suffered by the Respondent Worker, resulting from the aggravation of cervical disc disease, occasioned by the nature and conditions of employment, the deemed date of injury of which is 15 July 2003.
125.I note the Arbitrator’s assessment of quantum of the Respondent Worker’s weekly award was not the subject of challenge on this appeal.
DECISION
126.The decision of the Arbitrator dated 28 November 2006 is confirmed. The referral to an AMS provided for in that decision should be in accordance with these reasons.
COSTS
127.Although some aspects of the decision have been reviewed, and the order for referral to an AMS has been refined, overall the Respondent Worker has succeeded in defending the award entered in his favour. It is appropriate the Appellant Employer pay the costs of the Respondent Worker of this appeal.
Michael Snell
Acting Deputy President
11 July 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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