Trustees of the Roman Catholic Church for the Diocese of Lismore v Mackay
[2006] NSWWCCPD 153
•19 July 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Trustees of the Roman Catholic Church for the Diocese of Lismore v Mackay [2006] NSWWCCPD 153
APPELLANT: Trustees of the Roman Catholic Church for the Diocese of Lismore
RESPONDENT: Shona Jean Mackay
INSURER:Catholic Church Insurances Limited
FILE NUMBER: WCC114-04
DATE OF ARBITRATOR’S DECISION: 10 June 2005
DATE OF APPEAL DECISION: 19 July 2006
SUBJECT MATTER OF DECISION: Additional compensation under Section 67 Workers Compensation Act 1987; effect of prior consent award
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Astridge & Murray
Respondent: Lee Sames Egan
ORDERS MADE ON APPEAL: Time to appeal is extended until 29 September 2005.
Paragraph 1 of the Arbitrator’s decision of 10 June 2005 is revoked and the following order made:
“As a result of a further loss sustained by the Applicant under section 66 of the Workers Compensation Act 1987 as a result of injuries sustained by her in the course of her employment with the Respondent on 29 March 1996, the Respondent pay the Applicant additional lump sum compensation for pain and suffering pursuant to section 67 of the Workers Compensation Act 1987 in the sum of $2,500.00.”
Paragraph 2 of the Arbitrator’s decision of 10 June 2005 is confirmed.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 16 September 2005 the Trustees of the Roman Catholic Church for the Diocese of Lismore (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 10 June 2005.
The Respondent to the Appeal is Shona Jean Mackay (‘the Respondent Worker/Mrs Mackay’).
In about 1989 Mrs Mackay started work with the Appellant Employer as the special education officer in its Lismore office. Ultimately that position became full time. Her job involved a lot of driving in and around the Lismore area.
On 29 March 1996 she was driving in the course of her employment when she her car left the road and collided with a guard rail and an earth embankment (‘the First Accident’). As a result she sustained significant injuries. She was taken to Bellingen Hospital where x rays were taken but she was allowed home. Her main injuries were to her neck, back, right shoulder and left knee.
On 30 April 1996 Mrs Mackay underwent surgery to her right shoulder to repair a tear of the rotator cuff, accepted as having been caused in the accident.
In addition to her orthopaedic injuries Mrs Mackay also suffered from post traumatic stress disorder. She attended a clinic on 28 June 1996 for treatment but was not admitted. Instead, counselling was arranged.
On 11 July 1996 an arthroscopy was performed on her left knee when some cartilage debris was removed.
MRI scans performed on 20 August 1996 showed bulging discs at C5-6 and C6-7 in her neck and degenerative changes in her lumbar spine.
She was able to return to work on restricted duties on 26 August 1996 and eventually to full time duties in 1997.
On 10 April 1997 she filed an Amended Application for Determination (matter 18901/96) (‘the First Application’) in the Compensation Court of NSW (‘the Court’) seeking lump sum compensation as follows:
(a)$13,230.00 in respect of 25% permanent impairment of the neck;
(b)$19,845.00 in respect of 25% permanent impairment of the back;
(c)$26,460.00 in respect of 25% permanent loss of use of the dominant right arm at or above the elbow;
(d)$29,767.50 in respect of 30% permanent loss of use of the left leg at or above the knee, and
(e)$39,720.00 in respect of pain and suffering.
The above claim was settled in the Court on 21 October 1997 (‘the October 1997 settlement’) for the following amounts:
(a)$3,969.00 in respect of 5% permanent impairment of the back;
(b)$2,646.00 in respect of 5% permanent impairment of the neck;
(c)$21,168.00 in respect of 20% permanent loss of use of the dominant right arm at or above the elbow;
(d)$11,907.00 in respect of 12% permanent loss of use of the left leg at or above the knee, and
(e)$6,310.00 in respect of pain and suffering.
Included in the Court papers is a document headed “Admissions” which recorded the following admissions by the Respondent Worker (formerly Mrs Waring):
“1. I have been paid all my wages or compensation entitlements up to 21.10.97.
2. I have no outstanding s60 expenses as at 21.10.97.
3. I admit that I have no entitlement in respect of my right leg for any assessable
loss of use at this stage.”
Whilst it seems that no claim was made in the First Application in respect of Mrs Mackay’s left arm, Dr Searle stated in his report of 22 September 1997 that she had a 5% loss use of that arm at or above the elbow as a result of the injuries sustained in the First Accident. This assessment seems to have been based on the doctor’s finding of “tenderness over the left para-cervical structures and the left levator muscle” which was found to be in spasm. In addition the doctor took a history of pain in the neck which spread down “the back of the upper arm on each side” and paraesthesiae in both hands (report Dr Searle 19 September 1997).
Mrs Mackay remained at work after her settlement but continued to seek physiotherapy and see doctors for pain management (Respondent Worker’s statement 12 August 2003 page 11). On her return to work after long service leave in 2000 her symptoms increased and she experienced headaches, neck pain and a “funny feeling in [her] arms”. The report from Professor Mattick, psychologist, of 27 February 2003 suggests that Mrs Mackay was also experiencing low back pain, and tenderness in her left leg and left knee in the period leading up to September 2001.
On 12 September 2001Mrs Mackay was involved in another car accident (‘the Second Accident’). On this occasion she was driving to work when her car was struck from behind. She immediately felt nauseous and developed pain down the left side of her head and neck. She was taken to Ballina Hospital and kept for about four hours. At some stage after this accident she noticed pain across the back of her left shoulder and down her left arm. After attempting to return to work on Monday 17 September 2001 Mrs Mackay woke up at home experiencing extreme anxiety and tightness in her chest with difficulty breathing. She then remained off work until early 2002 when a return for three days per week was arranged. In October 2002 that was increased to four days per week and by 20 January 2003 she was back to full time work but doing a reduced number of student assessments and less driving. Physiotherapy and counselling were also arranged.
In her statement of 12 August 2003 Mrs Mackay made the following comments about her symptoms:
· her headaches had eased somewhat and only come on if she sat for long or undertook activities that were too strenuous;
· neck pain was experienced daily but its intensity depended on her level of activity;
· her low back pain was no different from the pain she experienced before the Second Accident;
· her upper back pain was significantly worse than before September 2001;
· her upper back pain would flare up when her neck pain increased. On those occasions she gets spasms and pain from her left shoulder into her upper arm together with pins and needles into the left hand.
On 19 December 2003 an Application to Resolve a Dispute (‘the Second Application’) was filed (registered on 5 January 2004) in the Commission seeking the following lump sum compensation as a result of the Second Accident:
(a)$8,000.00 in respect of a 20% permanent impairment of the neck;
(b)$11,250.00 in respect of a 15% permanent loss of use of the left arm at or above the elbow, and
(c)$10,000.00 in respect of pain and suffering.
These claims were referred to an Approved Medical Specialist (‘AMS’) for assessment under section 325 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). A Medical Assessment Certificate was issued on 6 October 2004 but contained a number of errors. As a result a direction was issued by the Arbitrator on 28 January 2005 (wrongly dated 28 January 2004) requesting the AMS to amend his report to include the injuries “incurred on 29 March 1996 and not only the injury on 19 September 2001” and requesting the AMS to “apportion impairment to the neck and loss of use of the left arm between the two injuries”. The AMS was also advised of the terms of the October 1997 settlement noted above.
A further MAC was issued in March 2005 certifying that the Respondent Worker has a 10% permanent impairment of her neck and a 5% permanent loss of efficient use of her left arm at or above the elbow. In respect of each part of the body the AMS found a deductible proportion of 50% due to the effect of the First Accident.
A teleconference was held on 29 March 2005 and the claim for lump sum compensation under section 66 of the 1987 Act was settled and a Certificate of Determination was issued on 1 April 2005 in the following terms:
“1. That the proceedings relating to medical expenses be discontinued.
2.That the Respondent pay the Applicant lump sum compensation under s66 of the Workers Compensation Act 1987 of $2,000.00 in respect of 5% permanent impairment of the Applicant’s neck arising as a result of an injury on 12 September 2001.
3.That the Respondent pay the Applicant lump sum compensation under s66 of the Workers Compensation Act 1987 of $1,875 in respect of 2.5% permanent loss of use of the Applicant’s left arm at or above the elbow arising as a result of an injury on 29 March 1996.
4.That the Respondent pay the Applicant lump sum compensation under s66 of the Workers Compensation Act 1987 in respect of 2.5% permanent loss of use of the Applicant’s left arm at or above the elbow arising as a result of an injury on 12 September 2001.
5.That the Determination in respect of the Application for lump sum compensation for pain and suffering be reserved.
6.That the Application in respect of costs be determined after the determination of the Application for lump sum compensation for pain and suffering.”
In addition to the above orders, the parties were directed to file written submissions dealing with the Respondent Worker’s entitlement to compensation for pain and suffering.
The Respondent Worker’s submissions were filed on 6 April 2005 and the Appellant Employer’s on 22 April 2005. The Arbitrator’s decision was delivered on 10 June 2005 and a Certificate of Determination prepared and issued on that day.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 10 June 2005, records the Arbitrator’s orders as follows:
“1.That the Respondent pay the Applicant, as lump sum compensation under section 67 of the Workers Compensation Act 1987, $13,750.00 in respect of pain and suffering, such sum to be apportioned as to $3,437.50 in respect of past pain and suffering and as to $10,312.50 in respect of future pain and suffering.
2.That the Respondent pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether:
(a)the Arbitrator erred in the manner in which he calculated the quantum of compensation under section 67 of the 1987 Act;
(b)in respect of the losses said to have resulted from the Second Accident, the Arbitrator erred in failing to have regard to the threshold in section 67(2) of the 1987 Act
(c)in respect of the additional loss said to have resulted from the First Accident, the Arbitrator erred in assessing lump sum compensation under section 67 of the 1987 Act by taking into account the impairment to the Respondent Worker’s neck which resulted from the Second Accident, and
(d)the amount of compensation awarded under section 67 of the 1987 Act was grossly excessive.
LEAVE TO APPEAL
Monetary Thresholds
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. The Appellant Employer submits that the proper quantum of compensation should be between $500.00 and $1,000.00. Therefore, at least 20% of the amount awarded is “at issue” in the appeal and the threshold in section 352(2)(b) is also satisfied.
The Respondent Worker concedes that the relevant monetary thresholds are met but argues that leave to appeal should still be refused because the monetary thresholds are “necessary but not sufficient prerequisites” (Respondent Worker submissions paragraph seven) before leave to appeal can be granted. It is submitted that “significant merit thresholds” must be achieved before an appeal will be entertained by the Commission (Respondent Worker’s submissions paragraph eight).
It is true that in addition to the monetary thresholds set out in section 352 an appellant must also satisfy certain jurisdictional thresholds (Programmed Maintenance Services Limited v Barter [2005] NSWWCCPD 42; John and Dave Bricklaying Pty Ltd v Campbell [2005] NSWWCCPD 62 and Mayne Group Limited v Unicomb [2006] NSWWCCPD 107), but once the Commission is properly seized of jurisdiction to hear an appeal there is no further “merit threshold” to be satisfied. The Respondent Worker has cited no authority in support of her submission and I am not aware of any case where it has been held that a prospective appellant must meet a “merit threshold” test before leave to appeal can be granted. I do not accept the Respondent Worker’s submission on this point.
If I am wrong on this point, and something more than merely meeting the monetary thresholds in section 352 (2) is required, I believe that the present matter is one in which it is appropriate to grant leave to appeal because it raises an important point of principle on which there is limited appellate authority.
Time to Appeal
The appeal was lodged outside 28 days of the Arbitrator’s decision in breach of section 352(4) of the 1998 Act. This occurred solely because the Certificate of Determination was not sent to the parties until 29 August 2005.
An extension of time in which to appeal can be granted in certain limited circumstances. Rule 77(8) of the Workers Compensation Commission Rules 2003 (‘the Rules’) provides that:
“(8) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’) where his Honour said at 480:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
The Respondent Worker opposes the extension of time to appeal and submits that Rule 77(8) is ultra vires because it is inconsistent with the terms of section 352 of the 1998 Act. I reject that submission for the reasons I set out in Sullivan v Illawarra Newspapers Holdings Pty Ltd [2006] NSWWCCPD 135.
In addition the Respondent Worker argues that in considering whether to extend time to appeal regard must be had to the “substantive issues going to the merits of the appeal”. I agree with this submission to the extent that it is consistent with the judgment McHugh J cited above in Gallo where his Honour noted that in such an application it is always necessary to consider the applicant’s prospects of succeeding in the appeal. These principles must be read with Rule 77(8).
Applying the principles in Gallo and Rule 77(8) it is my opinion the Appellant Employer is entitled to have the time to appeal extended in the present case for the following reasons:
(a)the delay in lodging the appeal resulted from the fact that the parties (through no fault of their own) were not notified of the outcome in the case until 29 August 2005. Once aware of the result, the Appellant Employer acted promptly and expeditiously to file the appeal;
(b)the appeal raises issues that are strongly arguable;
(c)to refuse to extend the time to appeal in the circumstances of this case would work a demonstrable and substantial injustice to the Appellant Employer.
I therefore extend the time to appeal in this matter until 29 September 2005.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
SUBMISSIONS AND FINDINGS
As a result of the MAC the following additional compensation was paid by consent:
(a)As a result of the First Accident: $1,875.00 in respect of a 2.5% permanent loss of use of the left arm at or above the elbow, and
(b)As a result of the Second Accident: $2,000.00 in respect of a 5% permanent impairment of the neck and $1,875.00 in respect of a 2.5% permanent loss of use of the left arm at or above the elbow.
The Respondent Worker concedes that she has no entitlement to section 67 compensation as a result of the Second Accident (Respondent Worker’s submissions paragraph 14). That is a proper and correct concession as the threshold in section 67(2) is clearly not satisfied in respect of the Second Accident.
The Appellant Employer concedes that the finding of a 2.5% loss of use of the left arm at or above the elbow as a result of the First Accident entitles the Respondent Worker to receive additional section 67 compensation in respect of that accident as Mrs Mackay had already satisfied the section 67(2) threshold (Appellant Employer’s submissions before the Arbitrator paragraph nine and on appeal at page six). The Appellant Employer takes no issue with the fact that the Second Application did not originally seek additional section 67 compensation in respect of the First Accident.
The dispute focuses on the correct method to be adopted in calculating that amount under section 67.
The Appellant Employer relies on the Court of Appeal decision in Lourdes House Hospital v Wheeler (1996) 13 NSWCCR 495 (‘Wheeler’) at 507 where Priestley JA said:
“Davidson CCJ’s view, however, was again to the effect that the lump sum for pain and suffering under section 67 was referable to a loss under section 66, and that if a further compensable loss occurred under section 66 then it again became necessary for the Court to consider whether the worker was entitled under section 67 to a lump sum for pain and suffering from the further loss. As already indicated, I agree with this understanding of section 66 and 67.
Davidson CCJ summed up the section 67 position succinctly: ‘In the event that there is a future increased loss, as distinct from increased pain and suffering without loss, a further award is permissible’. I agree with this and am of the view that there was material before Davidson CCJ which entitled him to conclude that there was increased pain and suffering from further losses entitling him to make the awards which he did under section 67.” (emphasis added)
It should be noted that no additional compensation is payable to the Respondent Worker in respect of her neck impairment as a result of the First Accident. Whilst the MAC found Mrs Mackay to have a 10% permanent impairment of her neck, only half of that impairment (5%) resulted from the First Accident. The Respondent Worker has already been paid 5% permanent impairment of her neck under section 66 in the October 1997 settlement. Therefore, there is no “further loss” of the neck resulting from the First Accident that would allow additional section 67 compensation so far as it relates to permanent impairment of the neck.
It is submitted by the Appellant Employer that the Arbitrator should have confined his section 67 reassessment to so much of the pain and suffering as resulted from the 2.5% loss of use of the left arm. For the reasons set out below, I agree with this submission.
The Arbitrator wrongly held that his task was to “assess an award for pain and suffering as a result of the further impairment of the neck and in respect of the left arm” (Statement of Reasons for Decision paragraph 16 (‘Reasons’) (emphasis added). There was no “further impairment” of the neck as a result of the First Accident. The additional 5% compensation for the neck was payable as a result of the Second Accident. That 5%, combined with the 2.5% loss in respect of the left arm, does not pass the section 67(2) threshold.
Consistent with Wheeler the Arbitrator’s task was to assess what, if any, additional section 67 compensation the Respondent Worker was entitled to receive as a result of the “further loss” she was found to have sustained to her left arm (2.5%) as a result of the First Accident.
The Arbitrator did not do that. He focused almost exclusively on the Respondent Worker’s pain resulting from her neck. That approach has led the Arbitrator into error in his assessment of the compensation payable under section 67.
The Respondent Worker has already been compensated under section 67 for any pain and suffering from the losses noted in the October 1997 settlement. She now has been found to have an additional loss of 2.5% of her left arm at or above the elbow and is entitled to have her section 67 compensation calculated to take that loss into account.
The Respondent Worker submits that when assessing an award under section 67 it is permissible to consider existing disabilities from whatever cause (Respondent Worker’s submissions paragraph 15). The authority cited is Dubbo Base Hospital v Harvey (1996) 13 NSWCCR 545. On this authority an Arbitrator is entitled, when assessing the impact of a compensable loss, to have regard to the fact that its effect may be “all the more substantial” because of an existing non compensable disability (per Beazley JA at 551). Whilst that is undoubtedly correct, that was not the approach adopted by the Arbitrator in the present case. He almost exclusively considered the pain and suffering experienced by the Respondent Worker as a result of the Second Accident. He did not assess the impact of the 2.5% loss of use of the left arm having regard to Mrs Mackay’s existing disability.
It is submitted that Wheeler is only relevant to the threshold question under section 67(2). I do not agree that Wheeler can be so restricted. The reference in that decision to compensation for “increased pain and suffering from further losses” makes it clear that the additional lump sum compensation under section 67 is compensation for pain and suffering resulting from those further losses. That that is so is confirmed when one considers that the Respondent Worker has already been compensated for her pain and suffering resulting from her other losses in the First Accident. It is further confirmed when one considers the words of Davidson CCJ (approved by Priestley JA) that “in the event that there is a future increased loss, as distinct from increased pain and suffering without loss, a further award is permissible”.
The Respondent Worker argues that once the section 67(2) threshold is met then the quantum of any award under that section is independent of the assessment made under section 66. As a general proposition that is correct and it is supported by the authority cited by the Respondent Worker of Staker v North Broken Hill Pty Limited (1992) 8 NSWCCR 332 (‘Staker’). In that case the worker made an agreement to settle his lump sum claim for 50% loss of use of his left leg below the knee as a result of an ankle injury and for $14,595.00 under section 67. His condition subsequently deteriorated significantly and he was later assessed by a medical panel to have a 75% loss of use of his left leg at or above the knee as a result of knee and hip problems resulting from his ankle injury. The employer conceded that the worker was entitled to additional compensation under section 66 but denied any entitlement to further compensation under section 67. The claim for additional compensation was heard by McGrath CJ and was successful. His Honour noted the employer’s argument at 335:
“The core and base of the argument in the present case is that the compensation payable under section 67 has been irrevocably determined, and cannot be altered even where the loss resulting from the employment injury has extended to an area which was not in existence at the time of the original determination.”
His Honour rejected that argument holding that once a further loss was sustained under section 66 a worker was entitled to further compensation under section 67. This conclusion is consistent with Wheeler. However, it gives the Respondent Worker very little support in the present claim. In Staker the worker suffered a significant deterioration in his condition and a substantial further loss under section 66 as a result of a serious worsening of his original condition. Mrs Mackay has had a very modest increase in her losses (2.5% of the left arm) resulting from the First Accident. She has had a significant increase in her neck pain but that has resulted from a separate and distinct accident in 2001 and not from the First Accident. As the losses from the Second Accident do not meet the thresholds in section 67(2) it is not permissible to take them into account in calculating additional section 67 compensation for the First Accident.
It is argued that there is no necessary proportionality between awards under section 66 for permanent impairment compensation and under section 67 for pain and suffering (Jones Bros Bus Co Pty Ltd v Baker (1992) 26 NSWLR 322) (‘Baker’). That is correct. It is quite possible to have a modest section 66 award and a high section 67 award because of significant pain resulting from the loss. The reverse can also apply. In Scrimshaw v SAR Wood Pty Ltd (1997) 14 NSWCCR 335 (‘Scrimshaw’) the worker suffered an injury at work that resulted in permanent damage to his heart muscle. As a result he suffered from fatigue when using his limbs and recovered compensation under section 66 for a 10% loss of use of each of his limbs. He recovered no compensation under section 67 because his pain was a cardiac symptom not pain from the loss of efficient use of his limbs.
The principles in Baker do not assist the Respondent Worker who has been found to have a very modest additional loss under section 66. The quantum of any additional section 67 compensation that results from that loss depends on the evidence touching on that issue. That evidence will be reviewed later in this decision.
It is submitted that additional increases in section 66 entitlements “do not necessarily affect an injured worker in a proportional or linear fashion” (Respondent Worker’s submissions paragraph 18(e)). That is, so the argument runs, the first 2.5% of impairment will not necessarily yield the same degree of pain and suffering as an additional 2.5% loss superimposed upon already substantial losses, as established in Mrs Mackay’s case. Whether that is true or not depends on the evidence in each case.
Next, the point is made that an assessment under section 67 is more subjective than an assessment under section 66. It is directed to the actual pain, or distress or anxiety, which results from the section 66 loss. That is correct. Following on this point it is submitted that the Arbitrator’s consideration of “the entirety of the Respondent workers pain [was] permissible and appropriate and the Arbitrator, on the available evidence [was] entitled to infer that the relevant ‘pain and suffering’ is relevantly ‘resulting from’ the additional losses” (Respondent Worker’s submissions paragraph 18(i)). I do not accept this argument. The Arbitrator was not entitled to have regard to the “entirety” of the Respondent Worker’s pain and was not entitled to “infer” that the pain resulted from the additional loss. What was required was an assessment of the pain and suffering resulting from the additional loss of 2.5% of the left arm from the First Accident. That was not done.
Next, it is submitted that the Arbitrator was entitled to consider the entirety of the pain resulting from all of the previous losses as the previous award was based on an agreement “indicating a misguided proportionality between s66 and s67” (Respondent Worker’s submissions paragraph 18(j)). Whether the previous proportionality was misguided or not was not a matter for the Arbitrator to consider. He was not dealing with a reconsideration under section 350(3) of the 1998 Act but with a claim for additional section 67 compensation as a result of a further section 66 loss. It was not his task to determine if the original settlement was fair and reasonable or ‘proportionate’. In addition, this submission is inconsistent with the authority of Baker noted above.
It is put that the Arbitrator was entitled to consider pain in the Respondent Worker’s “neck, back, head, shoulder, elbow, wrist or wherever the pain arises as it relevantly ‘results from’ the subject losses assessed under s66” (Respondent Worker’s submissions paragraph 18(k)). I do not accept this submission as it is contrary to Wheeler. Further, it invites a full redetermination of the Respondent Worker’s entitlement under section 67 when all that is permitted is the awarding of additional pain and suffering compensation as a result of a 2.5% loss of use of the left arm. The Respondent Worker’s section 67 compensation resulting from the losses set out in the October 1997 settlement was agreed and paid.
It is agued that to restrict the reassessment of section 67 compensation in respect of the sites or manifestations of pain is to “lace together” the investigations under section 67 with the relevant losses under section 66, which is contrary to Staker. For the reasons set out above, I do not accept this interpretation of Staker. That case concerned the interpretation of the settlement agreement reached by the parties. That is clear when one looks at his Honours comments at 335G:
“Now there would be circumstances where the parties had looked broadly at all the consequences of the employment injury, which, both actually and potentially, were within mutual contemplation at the time the agreement was made. Under such circumstances, an agreement may totally exclude any possibility of a review, or alteration, of the quantity of compensation payable under section 67. However, it seems to me that, on the face of the document, everything was not in the contemplation of the parties.
The document assumes that in some way or other, the quantum of section 66 itself is a measure and means of calculating the compensation under section 67. In the contemplation of the parties, rightly or wrongly, the only mutuality was that pain and suffering was being calculated in relation to nothing else but the 50 per cent loss of the efficient use of the leg below the knee.”
The ‘lacing together’ that his Honour referred to in Staker was a reference to the terms of particular settlement agreement in that case. His Honour specifically refers to “the central thrust of that document homes in on section 73” (emphasis added). And then adds “there has been an attempt [in that document] to lace together the provisions of section 66 and 67 as if they were part of some fixed scale which is covered by section 73”. His Honour quite rightly disagreed with that attempt. But that is not to say that the Respondent Worker is entitled to have all of her losses taken into account in reassessing her current section 67 entitlement. What is required is a calculation of the Respondent Worker’s entitlement having regard to the increased section 66 loss and taking into account the impact that increase has had on Mrs Mackay bearing in mind that she has a number of other impairments. If her left arm loss results in an increase in pain in other parts of her body then that is a relevant matter to take into account under section 67 provided the increased pain has resulted from the 2.5% loss of use of the arm.
It is submitted that the Arbitrator was entitled to assess the Respondent Worker’s condition as being 30% of a most extreme case provided the assessment related only to pain and suffering “resulting from” the losses in respect of the left arm (Respondent Worker’s submissions paragraph 18(m)). The Arbitrator did not restrict himself in the manner suggested. He assessed the matter from the point of view of the impact of the Second Accident on Mrs Mackay’s neck. He did not reach his assessment on the basis of the 2.5% loss of use of the left arm and its impact on the Respondent Worker’s neck pain. At paragraph 26 the Arbitrator said:
“It is clear from the statement that the injury to the neck in particular appears to have created a propensity for a great deal of suffering from headaches and neck pain.”
At paragraph 28 the Arbitrator said:
“In my opinion had she not suffered the first injury she would be entitled to 30% of a most extreme case by way of compensation for pain and suffering as a result of the injuries to her neck and left arm.”
The Arbitrator adds at paragraph 30 that the “injury to the neck is particularly debilitating, whereas it was not as a result of the first accident”. A deduction is then made to allow for the fact that “some part of the pain and suffering award made in respect of the 1996 injury was in respect of her neck” and the final award is for $13,750.00 or 27.5% of a most extreme case. The Arbitrator accepted that by far the majority of the Respondent Worker’s pain resulted from the Second Accident but failed to acknowledge that the losses in that accident did not meet the section 67 threshold. I disagree with the submission that the Arbitrator restricted his consideration to the loss assessed in the MAC.
It is argued that the overall allowance under section 67 of $6,310.00 (12.62% of a most extreme case) in the October 1997 settlement and $13,750.00 (27.5% of a most extreme case) in the present award, giving a total of 40.12% of a most extreme case, is justified on the evidence. This submission fails to acknowledge the errors in the Arbitrator’s approach noted above. The Respondent Worker has no entitlement to section 67 compensation as a result of the Second Accident.
Next, it is submitted that an agreement in respect of section 67, if based on an inappropriate “lacing together” of the provisions of section 66 and 67, does not prevent the Commission from properly assessing the overall proportional amount under section 67 properly payable (Respondent Worker’s submissions paragraph 18(q)). As I have explained above, the October 1997 settlement involved no “lacing together” of the kind seen in Staker.
It is submitted that it is permissible to take into account the stress experienced by Mrs Mackay caused by interference with social and other activities resulting from the combined losses (Respondent Worker’s submissions paragraph 18(r)). Reliance is placed on Department of Education v Boyd (1996) 13 NSWCCR 289. That is correct so long as the distress experienced has resulted from a compensable loss. To the extent that Mrs Mackay suffers from distress caused by interference with social and other activities, it is predominantly as a result of the losses sustained in the Second Accident or as a result of losses already compensated in the October 1997 settlement and, therefore, not compensable under section 67 in the present claim.
The Respondent Worker’s submissions at paragraph 18(s), (t) and (u) are noted but do not address the errors in the Arbitrator’s Reasons noted above.
Reassessment
The errors identified above mean that the Arbitrator’s section 67 assessment must be revoked. As no oral evidence was given before the Arbitrator and no issues of credit arise, I am in as good a position to reassess the Respondent Worker’s entitlement as the Arbitrator and that is what I intend to do.
Mrs Mackay was born on 24 January 1949 and was 47 at the time of the First Accident and is now 57. The general nature and extent of her injuries has been set out above and will not be repeated here. I approach the reassessment of her section 67 entitlement on the basis of that she has already been compensated under section 67 for the pain and suffering resulting from the section 66 losses set out if the October 1997 settlement and has no entitlement to section 67 compensation as a result of the Second Accident. However, she is entitled to additional compensation for the pain and suffering her has experienced and will continue to experience as a result of the 2.5% permanent loss of efficient use of her left arm at or above the elbow found to have resulted from the First Accident.
I take into account that whilst this loss is very modest in percentage terms, its impact may be more significant for someone like Mrs Mackay who has significant losses to other parts of her body.
The evidence dealing with the left arm symptoms is as follows:
(a)Dr Innes-Brown reported on 28 February 2003 that after the Second Accident Mrs Mackay “had periods of losing sensation in the outer side of her left arm” and the “back of her left shoulder became stiff” (page two); his first report of 15 April 1997 makes no mention of left arm or shoulder symptoms;
(b)Professor Mattick states in his report of 27 February 2003 that prior to the Second Accident Mrs Mackay was “still suffering lower back pain, some headaches and neck pain, tenderness in the left leg and left knee, but no other disabilities that she could recall” (paragraph 5.3); since the Second Accident she “complained of left arm numbness and pins and needles if she suffers neck spasm” (paragraph 8.2.10), decreased sensation in her left arm which she said was a “slight problem” (paragraph 9.1), dull aching in the left base of the skull down her neck to the upper shoulder (paragraph 9.4), dull aching pain in the left neck and left arm with some “minor impairment in day to day functioning because of pain” (paragraph 12.4);
(c)the AMS noted Mrs Mackay complained of a dull aching on the left side of her neck and that her left arm had pain if she sat or drove for too long (MAC paragraph four);
(d)in her statement 12 August 2003 Mrs Mackay stated that she experienced a “tearing sensation in the upper left” arm after the First Accident (page seven) and that when she returned to work from long service leave in the second half of 2000 she noticed a funny feeling in her arms (page 11); she added at page 17 that when her upper back pain was worse she got pins and needles down her arm and a strong dull ache in the back of her left shoulder into her upper left arm;
(e)Dr Searle noted in his report of 20 December 1996 that Mrs Mackay’s neck pain spread laterally into each trapezius region, more on the left side than the right (page three); on examination he found tenderness in each levator muscle and spasm in the left levator; in his report of 19 September 1997 he noted that her neck pain spread into each trapezius region and down the back of each upper arm with paraesthesiae in her hands; he noted her complaint of tenderness in the left levator muscle which was in spasm;
(f)in a report dated 22 September 1997 Dr Searle assessed Mrs Mackay to have a 5% permanent loss of efficient use of her left arm at or above the elbow as a result of her First Accident, and
(g)Dr Maron noted complaints of tingling in the left arm after the Second Accident but a full range of movement of the left arm (report 10 October 2001 page two) and in his 7 January 2002 report he noted Mrs Mackay complained of referred pain into the left arm when her neck pain was worse and that driving and lifting or use of the left arm increased her neck and arm pain (report 7 January 2002 page two).
The above evidence suggests that a large proportion of the Respondent Worker’s symptoms have resulted from the Second Accident and not from the additional 2.5% loss of use of the left arm loss resulting from the First Accident. There is no evidence to suggest that the left arm symptoms have caused any significant increase in the pain and suffering Mrs Mackay experiences as a result of her other losses.
Professor Mattick thought Mrs Mackay was suffering from an “adjustment disorder with depression and with some anxiety” which had resolved by July 2002 (paragraph 12.5) but he does not identify the extent to which the left arm loss has contributed to that condition, if at all. I am not satisfied that the psychological problems identified by Professor Mattick are the result of the 2.5% loss of use of the left arm resulting from the First Accident.
Whilst the above evidence suggests that Mrs Mackay may have had some symptoms in her left arm shortly after the First Accident, those symptoms were extremely modest and, on one view of the evidence, of limited extent and duration. According to Professor Mattick, the only disabilities before the Second Accident were lower back pain, some headaches and neck pain, tenderness in the left leg and left knee. Compensation under section 67 is restricted to compensation for “actual pain, or distress or anxiety” (section 67(7)). The Respondent Worker has already been compensated for the losses noted in the October 1997 settlement. The Respondent Worker symptoms increased significantly as a result of her Second Accident. The losses resulting from that accident do not entitle Mrs Mackay to any section 67 compensation.
I assess the Respondent Worker’s additional entitlement under section 67 as a result of her further section 66 loss to be 5% of a most extreme case or $2,500.00. It is not open to me to reassess the Respondent Worker’s total section 67 entitlements as to do so would amount to a reconsideration of the October 1997 settlement.
In the alternative, if I am wrong in the approach I have set out above, I find the Respondent Worker’s entitlement to section 67 compensation as a result of the losses sustained in the First Accident to be 17.62% of a most extreme case or $8,810.00 of which the sum of $6,310.00 has already been paid by the Appellant Employer.
DECISION
Time to appeal is extended until 29 September 2005.
Paragraph 1 of the Arbitrator’s decision of 10 June 2005 is revoked and the following order made:
“As a result of a further loss sustained by the Applicant under section 66 of the Workers Compensation Act 1987 as a result of injuries sustained by her in the course of her employment with the Respondent on 29 March 1996, the Respondent pay the Applicant additional lump sum compensation for pain and suffering pursuant to section 67 of the Workers Compensation Act 1987 in the sum of $2,500.00.”
Paragraph 2 of the Arbitrator’s decision of 10 June 2005 is confirmed.
COSTS
No order as to costs of the appeal
Bill Roche
Acting Deputy President
19 July 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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