Villar v Tubemakers of Australia Pty Ltd

[2009] NSWWCCPD 57

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS: Reported Decision: Villar v Tubemakers of Australia Pty Ltd (2009) 7 DDCR 469
CITATION:				Villar v Tubemakers of Australia Pty Ltd and ors [2009] NSWWCCPD 57
APPELLANT:				Eduardo Villar
FIRST RESPONDENT: SECOND RESPONDENT: THIRD RESPONDENT:				Tubemakers of Australia Pty Ltd Adecco Gemvale Constructions Pty Ltd Grocon Constructions Pty Ltd
FIRST RESPONDENT’S INSURER: SECOND RESPONDENT’S INSURER: THIRD RESPONDENT’S INSURER:				OneSteel QBE Workers Compensation (NSW) Ltd Cambridge Integrated Services Australia Pty Ltd
FILE NUMBER:				A1-7371/08
ARBITRATOR:		Ms J Conley
DATE OF ARBITRATOR’S DECISION:				5 January 2009
DATE OF APPEAL HEARING:			19 May 2009
DATE OF APPEAL DECISION:				25 May 2009
SUBJECT MATTER OF DECISION:				Injury; disease; sections 4, 15 and 16 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:				Deputy President Bill Roche
HEARING:				Oral
REPRESENTATION:				Appellant:	Mr Dodd, instructed by M.D. Di Re
First Respondent: Second & Third Respondents:	Mr Lowe, instructed by Rankin Nathan Lawyers Mr Robertson, instructed by Moray & Agnew
ORDERS MADE ON APPEAL:				For the reasons given in this decision, the Arbitrator’s Amended Certificate of Determination dated 3 February 2009 is confirmed, subject to the amendment of paragraph nine to delete the reference to “permanent impairment” and insert “permanent loss of efficient use” and subject to the following additional order: “11.   The respondents are to pay the applicant worker’s costs as agreed or assessed.  Those costs are to be paid in equal proportions.  The matter is certified as complex and an uplift of 20% is to apply to those costs.”
Each party is to pay his or its own costs of the appeal.

BACKGROUND

1. By an Application to Resolve a Dispute (‘the Application’) registered by the Commission on 17 September 2008, Mr Villar alleged that he sustained the following injuries:

(a)as against the first respondent, Tubemakers Australia Ltd (‘Tubemakers’), an injury to his right leg and knee on 31 March 1993;

(b)as against the second respondent, Adecco Gemvale Constructions Pty Ltd (‘Adecco’), an injury to his right leg and knee, an aggravation of previous injuries to his right knee, and an aggravation of secondary osteoarthritis involving all the joint compartments of the right knee as a result of work he performed for Adecco between 3 March 1999 and 6 September 1999 which work placed excessive and repetitive stresses on his right knee, and

(c)as against the third respondent, Grocon Constructions Pty Ltd (‘Grocon’), an injury to his lower back consisting of lower lumbar disc lesions and a disc protrusion as a result of heavy and repetitive bending and lifting between 21 February 2002 and 9 July 2002.

1. He claimed the following compensation:

(a)as against Tubemakers, weekly compensation in various amounts from 7 September 1999 to date and continuing, hospital and medical expenses, and lump sum compensation under the Table of Disabilities in respect of a 21% permanent loss of efficient use of his right leg at or above knee together with compensation for pain and suffering;

(b)as against Adecco, weekly compensation in various amounts from 7 September 1999 to date and continuing, hospital and medical expenses, and lump sum  compensation under the Table of Disabilities in respect of a 9% permanent loss of efficient use of the right leg at or above the knee together with compensation for pain and suffering, and

(c)as against Grocon, weekly compensation in various amounts from 10 July 2002 to date and continuing, hospital and medical expenses, and lump sum compensation in respect of a 6% whole person impairment as a result of injury to his lumbar spine together with compensation for pain and suffering.

1. In its Reply filed on 8 October 2008, Tubemakers stated that an offer of settlement had been made in relation to the claim for lump sum compensation.  In respect of the claim for weekly compensation, it stated that Mr Villar had provided insufficient documentation in support of the claim and it disputed that Mr Villar suffered an incapacity for employment as a result of his right knee injury sustained on 31 March 1993.

1. On 8 October 2008, Moray and Agnew filed separate Replies on behalf of the second and third respondents.  Adecco refused liability on the grounds that Mr Villar’s condition is constitutional and that he sustained no aggravation during his employment with it.  It also sought leave to argue that the injury alleged to have been sustained was a disease and that compensation is payable by the employer who last employed Mr Villar in employment to the nature of which the disease was due or by the employer who last employed Mr Villar in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or degeneration of the disease.

1. The Reply filed on behalf of Grocon relied on the matters in dispute set out in a section 74 notice dated 20 August 2008.  That document disputed injury, incapacity, permanent impairment and average weekly earnings. It also raised the same disease issues as set out in Adecco’s Reply.

1. The matter was listed for conciliation and arbitration on 5 December 2008 when Mr Dodd appeared for Mr Villar, Mr Lowe appeared for Tubmakers and Mr Robertson appeared for Adecco and Grocon.  The case could not be resolved at conciliation and proceeded to arbitration with lengthy submissions being made on behalf of each of the parties.

1. In a reserved decision delivered on 5 January 2009, and amended on 3 February 2009, the Arbitrator found against Mr Villar in respect of his claim for continuing weekly compensation against Tubemakers and awarded him closed periods of weekly compensation against Adecco and Grocon. She referred the claim for lump sum compensation against Tubemakers to the Registrar for referral to an Approved Medical Specialist (‘AMS’). Essentially, the Arbitrator found that whilst Mr Villar’s 1993 injury had not resolved, he suffered no economic loss as a result of that injury. In respect of the injuries with Adecco and Grocon, she found that those injuries were aggravation injuries under sections 4(b)(ii) and 16 of the Workers Compensation Act 1987 (‘the 1987 Act’) and that neither Adecco nor Grocon were employers who last employed Mr Villar in employment that was a substantial contributing factor to the aggravation (section 16(1)(b)).

1. The Commission issued an Amended Certificate of Determination on 3 February 2009, in the following terms:

“The Commission determines:

1.The First Respondent is to pay compensation for reasonably necessary medical expenses for an injury to the right knee on 31 March 1993 pursuant to section 60 of the Workers Compensation Act 1987 (the Act).

2.An award for the First Respondent for the claim for weekly compensation.  

3.The Second Respondent is to pay the Applicant weekly compensation pursuant to section 36 of the Workers Compensation Act 1987 (the Act) at the rate of $644.86 per week from 7 September 1999 to 2 December 1999, otherwise an award for the Second Respondent for the claim for weekly compensation.

4.The Second Respondent is to pay compensation for reasonably necessary medical expenses pursuant to section 60 of the Act in respect of the injury to the right [knee] due to employment from 3 March 1999 to 6 September 1999.

5.An award for the Second Respondent for the claim for lump sum compensation for permanent impairment [sic, loss of efficient use] of the right leg at or above the knee.   

6.The Third Respondent is to pay the Applicant weekly compensation pursuant to section 36 at the rate of $722.00 per week from 10 July 2002 to 30^th November 2002, otherwise an award for the Third Respondent for the claim for weekly compensation.   

7.The Third Respondent is to pay compensation for reasonably necessary medical expenses pursuant to section 60 of the Act due to an injury from 21^st of February 2002 until 9^th of July 2002  to the lumbar spine.

8.An award for the Third Respondent for the claim for lump sum compensation for permanent impairment of the lumbar spine. 

9.The claim for permanent impairment [sic, loss of efficient use] of the right leg at or above the knee in respect of an injury on 31 March 1993 is remitted to the Registrar for referral to an Approved Medical Specialist (the AMS) for assessment of the degree of  permanent impairment, if any.

10.The documents to be included in the referral to the AMS comprise the following:

The Applicant

·The Application to Resolve a Dispute and the documents annexed.  The Applicant was granted leave to rely upon a late statement.  

The First Respondent

·The Reply and the documents annexed.  Leave was granted to rely upon the clinical notes of Dr Kai Lee

The Second Respondent

·The Reply and the documents annexed except for the report of Dr Edwards.  Leave was granted to rely upon the report of Dr Millons, oral reason were given at the arbitration hearing.

The Third Respondent 

·The Reply and the documents annexed. 

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

1. By an appeal filed on 2 February 2009, Mr Villar seeks leave to appeal the Arbitrator’s determination.

LEAVE TO APPEAL

Monetary Threshold

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

1. There is no dispute that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.

Time

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

1. I grant leave to appeal.

THE EVIDENCE

1. Mr Villar’s evidence is set out in four statements dated 24 September 2002, 13 May 2008, 15 September 2008 and 6 November 2008.  His evidence may be summarised as follows:

(a)he was born in Peru in 1963 and completed the equivalent of the NSW Higher School Certificate in Peru in 1980.  After completing his schooling he mainly worked as a clerk in restaurants;

(b)he arrived in Australia in 1988, initially on a tourist visa.  After being given permission to obtain employment, he worked as a process worker for six months in 1989 with a company at Manly.  In September 1989, he started work with Tubemakers as a process worker at their pipe processing plant at Yennora;

(c)on 31 March 1993, Mr Villar struck his right knee against a metal barrier in the course of his employment with Tubemakers.  He sought medical treatment and was ultimately referred to Dr Harrison, orthopaedic surgeon.  Arthoscopic surgery was performed on his right knee on 30 June 1993 and, after a brief recovery period, Mr Villar returned to work with Tubemakers where he continued to work until he resigned on 22 February 1994 and returned to Peru;

(d)though he could not recall with precision, he estimated that he probably earned an average of about $650.00 gross per week whilst working with Tubemakers;

(e)he returned to Australia in August 1995 and obtained permanent residency status;

(f)in September 1995 he moved to Melbourne where he worked for four different companies doing manual work until he returned to Sydney in September 1997;

(g)on 3 March 1999 he obtained employment with Adecco as a labourer in the construction industry;

(h)since his injury to his right knee in March 1993, he continued to have occasional pain in his knee but did not seek medical treatment;

(i)his duties with Adecco required him to walk up and down stairs and over uneven ground resulting in excessive stress being placed on his right knee.  The pain in his right knee started to “flare up again” and in about July 1999 he consulted his family doctor, Dr Munz, who arranged for x-rays;

(j)he stopped work on 6 September 1999, when he could no longer cope with his work;

(k)his average earnings with Adecco were about $898.45 gross per week;

(l)he returned to work with a different employer on 3 December 1999, initially as a construction labourer and then as a formwork carpenter.  Between then and February 2002, he worked for various employers as a cleaner, construction labourer and formwork carpenter;

(m)on 21 February 2002, he started work with Grocon as a formwork carpenter earning an average of $1,222.85 gross per week.  That work involved lifting heavy construction materials and a lot of pushing and pulling.  Because Grocon had a new foreman, who did not appear to be able to organise the machinery, work did not go smoothly.  As a result, he often had to lift and carry heavy timber, steel frames and columns.  In about May 2002, he started feeling discomfort in his lower back.  The repetitive bending and lifting in the work tended to aggravate his lower back pain, though he continued working until he stopped on 5 July 2002 and consulted his general practitioner, Dr Gulisano, on 10 July 2002.  He resigned his employment with Grocon on 27 July 2002 and lodged a claim for compensation in respect of his lower back on 6 September 2002;

(n)on 17 July 2003, he returned to work with Hunani Pty Ltd as a formwork carpenter earning about $1,329.28 gross per week.  He ceased work with that company on 6 September 2003 to return to Peru because of his mother’s ill health;

(o)he returned to Australia in either late 2005 or early 2006;

(p)between January 2006 and 23 August 2007, he worked for four different companies as a formwork carpenter.  In this period his weekly wage fluctuated between $1,308.57 and $1,713.66.  Because of his right knee he had difficulty coping with work as a formwork carpenter and he looked for different work.  On 27 August 2007, he commenced work with Blue Collar Recruitment as a baggage handler at Sydney Airport earning $914.00 gross per week.  In August 2008 he ceased work with Blue Collar Recruitment and on 27 August 2008 he commenced work as a baggage handler with Qantas Airways Ltd, and

(q)in his statement dated 6 November 2008, Mr Villar said the work of a formwork carpenter involved:

“excessive lifting, and carrying of construction materials such as timbers, steel frames, columns and the like.  It also involves going up and down of [sic] the scaffolds, and ladders, whilst carrying construction material on my shoulder.  The work of a formwork carpenter does not often give us an opportunity to have a break, as it is pressurized.  All this placed excessive and repetitive stress on my lower back, and right knee.”

Mr Villar’s Medical Evidence

1. On 22 June 1993, an x-ray of Mr Villar’s right knee revealed “slight degenerative disease” with minimal narrowing of the medial side of the knee joint.  A further x-ray of the right knee on 23 June 1999 revealed mild sharpening of the intercondylar eminences and some early lipping of the medial tibial plateau and the margins of the patella.  The radiologist concluded that the x-ray revealed “mild osteoarthritic changes”.

1. An MRI scan on 30 September 1999 revealed “minimal irregularity of contour of the retro-patellar articular cartilage”.

1. Dr Bertouch, consultant rheumatologist, examined Mr Villar in October 1999 and referred him to Dr Waller.  The referral letter noted the 1993 injury and resulting surgery at the hands of Dr Harrison.  It also referred to Mr Villar experiencing pain in his right knee which was worse on stairs and at night and that his knee sometimes felt like it might give way.

1. Dr Harrison examined Mr Villar for medico-legal purposes on 25 May 2000.  In a report of the same date he noted the history of the 1993 injury and set out his findings from the June 1993 arthroscopy.  Those findings included some loose segments of hyaline articulate cartilage floating in the joint with an area of ulceration involving the trochlear area in the intercondylar region of the femur where the hyaline articulate cartilage was ulcerated and flapping at the margins.  An arthroscopic chondroplasty and osteoplasty was performed.  Dr Harrison thought the injury was a serious one in a young man and he warned Mr Villar to avoid unnecessary squatting, kneeling or travelling up and down stairs.

1. Dr Harrison noted that Mr Villar’s work with Adecco required him to walk up and down ramps, steps and planking, and over uneven ground.  It also required him to climb up and down and jump off scaffolding.  Mr Villar began to experience pain in and around his right knee with swelling, but he remained at work until the pain forced him to stop on 6 September 1999.

1. At examination on 25 May 2000, Mr Villar could not squat fully because of right knee pain and he had reduced flexion.  There was marked crepitus in the knee, but no ligament instability.  In Dr Harrison’s opinion, Mr Villar “had medial compartmental and accelerated femoral wear changes in his right knee”.  He expected there would be progressive deterioration and change with time, such that further surgery may be indicated.

1. Dr Harrison assessed an 18% permanent loss of efficient use of the right leg at or above the knee.  On the issue of causation, the doctor said (at page eight):

“I would attribute almost all that to the effects of the accident on 31 March 1993, notwithstanding the treatment, rehabilitation and other work exposure he has had since then.  It was the frank injury that caused damage and alteration to the bearing surface which, despite repair has gone on to an accelerated process of wear and associated symptoms and signs that are certainly evident when assessed here today.”

1. Mr Villar’s solicitor wrote to Dr Harrison on 21 July 2000 asking him, in the light of his history and his assessments, to elaborate on “what percentage, even if nominal, you would attribute to the nature and conditions of his subsequent employment with Adecco Gemvale, from 3 March 1999 to 6 September 1999.”  Dr Harrison replied on 20 September 2000 that the six months of work with Adecco represented a “modest 6 months out compared to the 4 ½ years he had had with Tubemakers”.  He then added:

“It is my belief the problems he has had in his left [sic, right] knee are a sequel to the accident at work on 31 March 1993 [and] have been affected by various periods of manual labouring work that he has done and his history of symptoms seems to reflect that as do the other objective signs through assessment and x-ray studies that have been done.  I would therefore not attribute any more than an appropriate proportionate amount of the time he has worked with Adecco Gemvale (6 months) to the total time he had worked with Tubemakers after the incident and in the construction industry elsewhere.

By such a process of calculation, in my opinion the frank injury at work on 31 March 1993 was the key incident in which significant damage was done to the trochlear area of his right knee following that heavy impact force.

Subsequent periods of exposure to labouring work have been exacerbating times to that process of wear and change that has occurred.  I would therefore not ascribe any more than one-twentieth of the permanent impairment of his right leg at and above the knee including below the knee and leg as a whole to the period of time he was employed with Adecco Gemvale.”

1. An x-ray of Mr Villar’s lumbosacral spine on 11 July 2002 revealed minimal scoliosis.  A CT scan of the lumbosacral spine dated 12 July 2002 demonstrated bulging of the annulus of the L4/5 disc resulting in mild stenosis of the spinal canal and gas within the L5/S1 discs, indicating degeneration.  There were also degenerative marginal osteophytes at the vertebral endplates.  The radiologist concluded that there were degenerative changes seen at the L4/5 and L5/S1 discs, but there did not appear to be any nerve root impingement. 

1. Dr Gulisano reported to Grocon’s insurer on 1 October 2002.  He noted that Mr Villar’s work, as a carpenter, required him to bend and twist repeatedly.  The doctor stated that the CT scan of the lumbo-sacral spine showed degenerative changes at L4/5 and L5/S1 that were due to Mr Villar’s type of work.  He considered Mr Villar to be permanently unfit for his pre-injury duties or similar and he assessed him to have a 20% impairment.

1. Dr Kai Lee, orthopaedic surgeon, reported to Dr Gulisano on 10 October 2002, having examined Mr Villar on that day.  He recorded that Mr Villar’s symptoms were getting slightly better since he stopped work.  On examination, Mr Villar could flex to reach his knees, extension reproduced some pain and straight leg raising was 60° on both sides.  There were no neurological deficits.  Under “Impression”, the doctor stated that Mr Villar had a chronic injury to his back as a result of the kind of work he had been doing.  He thought it would be difficult for Mr Villar to return to work as a carpenter involving a lot of back bending and lifting.  He referred him for physiotherapy, rehabilitation and retraining for suitable duties.

1. Medical certificates declared Mr Villar unfit from 10 July 2002 until 30 November 2002.  There are no certificates in evidence after that date.

1. On 18 August 2003, Mr Villar underwent MRI scans of his lumbar spine and right knee.  The lumbar spine scan revealed a right sided annular tear at L4/5 and a broad based central and left sided disc protrusion at L5/S1.  The scan of the right knee revealed a small medial meniscal tear and tricompartmental osteoarthritis.

1. On 11 October 2006, Mr Villar underwent a further CT scan of his lumbar spine which revealed facet joint osteoarthritis at L5/S1 and an L4/5 central posterior annular disc bulge and early spinal stenosis.

1. Dr Harrison reviewed Mr Villar for medico-legal purposes on 20 August 2007.  He noted that Mr Villar was working as a sub-contractor doing formwork and that he had ongoing pain in his right knee that was present on most days at or after work, particularly after completing work when he was resting.  Mr Villar was aware of a grating or grinding noise in his right knee and to a lesser extent, in his left knee in recent times. He had no associated swelling but there were times when he felt as if his right knee might give way, but he had not had any further accidents or falls.  He was conscious of difficulties squatting, kneeling and fully flexing his right knee.  Climbing stairs or ladders exacerbated the pain in his right knee, which was only eased by rest and taking analgesics.

1. On examination, Dr Harrison noted slightly reduced flexion in the right knee and slight medial compartmental laxity.  There were also palpable osteophytes in the knee, consistent with adaptive changes of early osteoarthritic change in both knees, the right worse than the left.

1. Commenting on the 2003 MRI scan, Dr Harrison stated that there were “wear changes affecting the medial and lateral compartments as well as the patello-femoral joint in the right knee” and added that the clinical findings on examination also suggested that there were some early degenerative changes in the left knee as well.

1. He assessed Mr Villar to have a 20% permanent loss of efficient use of the right leg at or above the knee as a legacy of his injury in 1993 and through the nature and conditions of his work with Adecco on 3 March 1999 to 7 September 1999.  The doctor thought that Mr Villar was capable of “trades-related work with various building firms”, notwithstanding the pain patterns he was still experiencing, however, the doctor felt there needed to be some “qualifications” in the type of work Mr Villar was asked to do so that he was not exposed to frequent bending, lifting, carrying heavy items over uneven surfaces or up and down ladders, and not obliged to use or clamber over scaffolding.  These restrictions were for his “protection against the risks of pain and potential pain-mediated instability; that is patello-femoral pain causing his right knee to give way on him and leaving him exposed to potential falls and damage to the right knee or other parts of his body.”

1. Dr Kai Lee reported to Mr Villar’s solicitor on 12 March 2008.  It does not appear that this report resulted from a further examination and this report appears to be based on his examination in 2002.  Dr Kai Lee recorded that Mr Villar’s work with Grocon involved heavy lifting of construction materials and, “as a result of these heavy liftings [sic], he gradually developed increasing back pain”.  The doctor assessed Tubemakers to be responsible for 70% of the right knee injury and employment from 3 March 1999 to 6 September 1999 with Adecco to be responsible for the remaining 30%.  He estimated Mr Villar to have a 30% loss of efficient use of his right leg at or above the knee.  He assessed a 5% whole person impairment of Mr Villar’s back.

1. Dr Deveridge examined Mr Villar at the request of his solicitor on 1 April 2008 and reported on 10 April 2008.  He took a comprehensive history and reviewed all of the relevant radiological examinations.  In his opinion, Mr Villar’s 1993 injury resulted in some “retro patellar chondromalacia”, which in turn pre-disposed him to the subsequent development of secondary osteoarthritis involving all three joint compartments.  He felt that the greater part of the residual disability in the right lower limb was attributable to the 1993 injury.  He noted that the right knee joint condition partially deteriorated as a result of the nature and conditions of his employment with Adecco between March 1999 and September 1999 and that a small part of the residual disability was due to that period of employment. 

1. In respect of Mr Villar’s back, the doctor felt that the nature and conditions of his employment with Grocon was responsible for the ongoing back disability.  He considered it reasonable and appropriate on medical grounds that Mr Villar sought lighter employment.  He was able to continue his job as a baggage handler, but needed to avoid heavy and repetitive lifting, frequent bending and twisting.  His right knee condition further limited him from kneeling and crouching with loads and on ladders, scaffolds, rough and uneven surfaces.  He assessed Mr Villar to have a 22% permanent loss of efficient use of his right leg at or above the knee, which he reduced to 20% to allow for pre-existing or constitutional changes.  Of that 20% loss, he assessed 90% to be due to the 1993 injury and the remaining 10% to be due to the nature and conditions of employment with Adecco.  He assessed a 6% whole person impairment as a result of the condition of Mr Villar’s lumbar spine, with no deduction for pre-existing conditions.

1. Dr Mehta, general practitioner at the Fairfield Chase Medical and Dental Centre, reported to Mr Villar’s solicitor on 6 August 2008.  Mr Villar first attended at that practice in 2002 and first consulted Dr Mehta on 10 June 2006.  Dr Mehta re-examined Mr Villar for the purpose of preparing his report.  He took a detailed history of Mr Villar’s work history and recorded (at page three) that after returning to Sydney in 2005 Mr Villar worked for various companies as a formwork carpenter, but:

“As this job aggravated his problems of knee and back, he left the industry to work as a baggage handler at Sydney Airport as it is less strenuous to his knee and lower back though at a much reduced pay scale”. 

1. Mr Villar continued to work as a baggage handler but continued to suffer from pain in his right knee, which made it difficult for him to squat and negotiate stairs.  His backache felt worse as the day progressed and bending and heavy lifting made the pain worse.  There was no radiation into the legs.

1. The doctor concluded, “as a result of the injuries, Mr Villar has suffered a tricompartment osteoarthritis to his right knee and disc damage to L5/S1 level”.  He felt that as time progressed, there would be further deterioration to the knee and back injuries and that Mr Villar may need surgery to his knee and back if symptoms worsen.

Tubemakers’ Medical Evidence

1. Tubemakers relies on reports from Dr Sikander Khan, consultant surgeon, dated 6 March 2000 and 16 June 2008.  In his first report, Dr Khan noted Mr Villar to have a normal range of movement in his right knee with slight retro patellar grating.  There was no localised joint line tenderness and no collateral ligament laxity.  There was slight patello-femoral discomfort.  Dr Khan concluded that, as a result of the 1993 injury, Mr Villar sustained a chondral injury to the articular surface of the femoral condyle.  Mr Villar also had an early constitutional degenerative condition of his right knee as noted on x-rays, which developed over the years.  In Dr Khan’s opinion there had been a degree of acceleration of the degenerative condition in the patello-femoral compartment “which may have occurred as a consequence of the injury of 1993”.  As a result of his work between June and September 1999, Mr Villar sustained an aggravation of his pre-existing condition in the right knee.  The doctor noted that the “temporary aggravation was treated conservatively with anti-inflammatory medication” and that the “effects of the temporary aggravation would have lasted for a period of some months and resolved thereafter”. 

1. Based on Dr Khan’s examination in March 2000, Mr Villar’s continuing symptoms were consistent with earlier arthritis of the right knee involving the patello-femoral compartment.  He thought Mr Villar was unfit for normal duties, but fit for selected duties that did not involve prolonged climbing up and down ladders, stairs, or prolonged squatting or kneeling activities.  He thought Mr Villar was fit for pre-injury process work, though his ability to obtain employment on the open labour market would be slightly restricted because of his inability to carry out unrestricted climbing up and down ladders, stairs and doing strenuous work such as those of a formwork labourer.  He felt that Mr Villar’s condition was “predominantly due to the pre-existing constitutional degenerative condition of his right knee (two-thirds) and partly due to the effects of injury that he sustained to his right knee in 1993 (one-third)”.

1. In his report of 16 June 2008, Dr Khan wrongly recorded that Mr Villar hurt his back whilst working with Adecco in 1999.  He added, more accurately, that Mr Villar’s work with Grocon in 2002 caused further stress to his back.  At the time of his examination in June 2008, Mr Villar complained of aching in his lower back and in his right knee, both of which were worse at the end of the day.  He was able to climb up and down stairs, but did not feel confident while going down stairs because his knee feels as if it might give way.

1. Under “Diagnosis and Opinion”, Dr Khan confirmed that Mr Villar sustained a chondral injury to his right knee in 1993.  He felt there had been “further episodes of temporary exacerbation and aggravation during the course of his subsequent work related activities with other employers, which improved on conservative management”.  He felt that Mr Villar had minimal degenerative changes in his right knee prior to the 1993 injury, which were accelerated by the injury over the ensuing years.  He added that Mr Villar had been partially incapacitated for work since September 1999, though he had continued working as a formwork carpenter for many years since that time.  Mr Villar’s partial incapacity in relation to his right knee in terms of restriction of repetitive kneeling, squatting and climbing up and down ladders and stairs remained permanent.  He also stated (at page nine) that there was a contribution to Mr Villar’s partial incapacity “from an unrelated back injury which he sustained while working for different employers”.

Adecco and Grocon’s Medical Evidence

1. At the request of Grocon’s insurer, Dr Miniter, orthopaedic surgeon, examined Mr Villar on 16 September 2002.  In his report of 23 September 2002, Dr Miniter recorded that Mr Villar began to experience back pain in July 2002 while he was working for Grocon as a formwork carpenter.  He took no history of the pain radiating into Mr Villar’s legs.  On examination, Mr Villar was able to flex his lumbar spine without difficulty, but was tender to palpation at the lumbo-sacral junction.  The femoral nerve stretch test and straight leg raising test were both normal and there was no obvious neurological impairment of either lower limb.  The doctor noted the CT scan revealed some gas in the lumbo-sacral disc which he felt may have indicated a longstanding degenerative process.  There were, however, no acute findings.  He felt that the lumbo-sacral disc degeneration was not related to Mr Villar’s work, “other than perhaps a matter of aggravation which would be short-term at best.”  Dr Miniter considered Mr Villar to be fit for employment as a carpenter with Grocon and that, with a concerted and aggressive physiotherapy/strengthening programme, he would be able to return to his full pre-injury employment.  Whilst he did not believe Mr Villar’s incapacity was work related, he conceded that he probably had suffered a “soft tissue injury and aggravated those pre-existing degenerative changes”.

1. Adecco relies on two reports from Dr Millons dated 30 October 2008.  Dr Millions took a detailed history and specifically noted the increase in symptoms Mr Villar experienced when he worked for a few months at Adecco in 1999.  He added that he doubted whether that brief period of work was of any particular significance. Mr Villar was aware that when he worked as a formwork carpenter, his knee symptoms seemed more prominent.  Dr Millons added “One might presume therefore that [the] right knee problems may have had their origin in the incident in 1993.”  He added (at page eight):

“Perhaps the stage was set then for the development of some degenerate changes as the years have passed.  The normal activities of daily living and the nature and conditions of his work over the years may have played some part in acceleration of changes in the knee.”

1. In respect of Mr Villar’s back, Dr Millons noted that the 2002 CT scan demonstrated some degenerate change at the lumbo-sacral disc which was “almost certainly constitutional based but which may have been aggravated by the nature and conditions of his work at Grocon.”  He felt that the MRI scan performed in August 2003 confirmed problems in the lower lumbar region.  Mr Villar modified his duties at that time and spent two years out of the workforce in Peru.  The doctor added (at page 9 of his report) that Mr Villar’s degenerate changes in his lower lumbar region may have been aggravated by his work as a formwork carpenter, particularly when working at Grocon when the symptoms first started.

1. In answer to the question of whether he considered the allegations of injury against Adecco to be in the nature of a disease or the aggravation of a disease, Dr Millons answered that the work at Adecco in 1999 might have caused some aggravation of the right knee problems but he doubted whether in the overall picture that that aggravation was of any particular significance.

1. In answer to the question of whether he considered the allegations of injury against Grocon to be in the nature of a disease or aggravation of a disease, Dr Millons answered that the back symptoms came on while working at Grocon and Mr Villar has degenerate changes in his back, a constitutionally based condition.  He concluded, “There appears to have been some aggravation of those pre-existing changes while at Grocon.”

1. Dr Millons was also asked:

“If I consider these injuries to be in the nature of a disease or aggravation of a disease, do I consider that the Applicant has been employed in employment to the nature of which the disease was due or employment that was a substantial contributing factor to the aggravation of the disease after leaving the employ of Grocon?”

1. He replied that he did not understand the question.

1. In his shorter report of 30 October 2008 (dealing with the claim for whole person impairment), Dr Millons reiterated that, so far as the right knee was concerned, he did not consider the work at Adecco of itself to be of any particular significance, anymore than his work as a formworker at other places had been.  He assessed Mr Villar to have a 15% loss of efficient use of his right leg at or above the knee, two-thirds reflecting the after effects of the 1993 injury and one-third reflecting the activities of daily living “continuing to play on the attritional changes within”. 

1. Dr Millons assessed Mr Villar to have a 5% whole person impairment as a result of the condition of his lumbar spine, which he felt “would seem to relate in part to the work Mr Villar was performing at Grocon in 2002 and in part to the nature and conditions of his work thereafter”.  Dr Millons agreed with Mr Villar’s assessment that the work with Qantas was not “contributory”. 

THE ARBITRATOR’S REASONS

1. The Arbitrator delivered a reserved decision on 5 January 2009.  Paragraph 75 of that decision was amended on 3 February 2009 to delete “31 March 1999” and substitute “31 March 1993”.  The Arbitrator’s key findings in her Statement of Reasons (‘Reasons’) may be summarised as follows:

(a)with the apparent consent of the parties, she identified the issues in dispute to be: as against the first respondent, whether Mr Villar suffered any incapacity as a result of the 1993 injury; as against the second respondent, whether the injury to the right knee was a disease of such a nature as to be contracted by a gradual process or, alternatively, an aggravation, acceleration, exacerbation or deterioration of a disease and, if so, was the second respondent the employer who last employed Mr Villar in employment to the nature of which the disease was due, or alternatively, the last employer who employed Mr Villar in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease; as against the third respondent, was the injury to the lumbar spine a disease which was of such a nature as to be contracted by a gradual process or, alternatively, an aggravation, acceleration, exacerbation or deterioration of a disease process, and, if so, was the third respondent the employer who last employed Mr Villar in employment to the nature of which the disease was due, or, alternatively, the last employer who employed Mr Villar in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease;

(b)the injury to Mr Villar’s right knee while employed by Adecco resulted in the further aggravation and/or deterioration or acceleration of the degenerative osteoarthritic changes in the right knee and this was an injury within the meaning of section 16 of the 1987 Act. The subsequent employment after the injury with Adecco led to further aggravations of this condition (Reasons, at [40]);

(c)compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation.  In respect of the injury with Adecco, there was subsequent employment that was a substantial contributing factor to the aggravation (Reasons, at [41]);

(d)therefore, there should be an award for Adecco in respect of the claim for lump sum compensation resulting from the injury to the right knee (Reasons, at [42]);

(e)the injury to Mr Villar’s lumbar spine while employed with Grocon resulted in the further aggravation of the degenerative changes present in his lumbar spine. This was an injury within the meaning of section 16 of the 1987 Act. Subsequent employment led to a further aggravation of the condition and under section 16 the date of injury is the date of incapacity or the date of the claim and compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation (Reasons, at [60]);

(f)therefore, there is an award for Grocon in respect of the claim for lump sum compensation against it;

(g)the effects of the initial injury to the right knee in 1993 with Tubemakers never fully resolved (Reasons, at [67]);

(h)from 7 September 1999 until August 2007, Mr Villar did not have any incapacity for work resulting from the 1993 injury (Reasons, at [75]);

(i)in respect of the period from August 2007 to date, it was unnecessary to consider whether the incapacity resulted from the knee injury, the back injury, or both, as Mr Villar’s earnings were in excess of his probable earnings with Tubemakers;

(j)from 3 December 1999, Mr Villar had no further physical incapacity for work of the kind he performed with Adecco (Reasons, at [84]);

(k)Mr Villar was entitled to an award against Adecco at the rate of $644.86 per week under section 36 of the 1987 Act from 7 September 1999 to 2 December 1999, but there would be an award for Adecco in respect of the claim for weekly compensation thereafter (Reasons, at [85]), and

(l)Mr Villar was entitled to an award against Grocon in the sum of $722.00 per week under section 36 of the 1987 Act from 10 July 2002 until 30 November 2002, but there would be an award for Grocon for the period claimed thereafter (Reasons, at [96]).

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are whether the Arbitrator erred in:

(a)as against Tubemakers, failing to enter an award for weekly compensation from 1 August 2007 pursuant to section 40 of the 1987 Act, despite having held that Mr Villar had a continuing partial incapacity, lump sum entitlement, and need for medical treatment in respect of the injury to his right knee (‘the section 40 claim’);

(b)as against the second and third respondents, misstating the issues to be determined (‘misstating the issues’);

(c)as against the third respondent, making a determination that the nature of Mr Villar’s injuries were an aggravation of a disease when there was no evidence to support that finding (‘aggravation of disease’);

(d)as against the second and third respondents, failing to consider that Mr Villar’s incapacity, need for medical treatment, and permanent impairment could be due to a combination of different types of injury (‘different types of injury’), and

(e)as against all respondents, failing to award costs in favour of Mr Villar against the respondents (‘costs’).

SUBMISSIONS, DISCUSSION AND FINDINGS

As against the first respondent – the section 40 claim

1. It is submitted on behalf of Mr Villar that:

(a)the Arbitrator found that the effects of the 1993 injury never fully resolved;

(b)partly due to the continuing incapacity for work due to the right knee injury, Mr Villar changed his employment in August 2007 to something more suitable and has since suffered a loss of earnings;

(c)the Arbitrator should have made an assessment of Mr Villar’s section 40 entitlements based on his actual weekly earnings in 2007 as a proper reflection of his ability to work, rather than the extent of his earnings solely with Tubemakers, which ceased some fourteen years earlier.  It cannot be expected that a worker would have remained working for Tubemakers for his entire working life;

(d)section 40(2)(a) of the 1987 Act requires consideration of probable weekly earnings in the same or some comparable employment.  Where there is a long period between the injury and the financial loss, the Commission should estimate the Worker’s probable earnings on a realistic basis (NSW Harness Racing Club v Forrest [1995] NSWCA 313; (1995) 12 NSWCCR 217(‘Forrest’); Lloyd v Northern Rivers Charity Racing Association [2001] NSWCC 49; (2001) 22 NSWCCR 577 (‘Lloyd’));

(e)where the intention of Mr Villar, as a new migrant, was to take on additional work over time and not necessarily be stuck working for Tubemakers forever, it is appropriate to take into account his actual post-employment earnings when determining his probable weekly earnings (Department of School Education v Boyd [1996] NSWCA 152; (1996) 13 NSWWCCR 289 at 292-293) (‘Boyd’)), and

(f)this part of the claim should be remitted to the Arbitrator to make a proper assessment under section 40.

1. It is submitted on behalf of Tubemakers that:

(a)there is no evidence that Mr Villar is incapacitated for process work in a pipe factory (the work he performed for Tubemakers in 1993) and, even if there is a finding of a physical incapacity, it does not have any economic consequences as against Tubemakers because Mr Villar has been able to earn in excess of his probable earnings, but for his injury, for the period of the claim;

(b)from 7 September 1999 until August 2007, Mr Villar suffered no reduction in his earnings as a result of his right knee injury;

(c)the wage schedule in the Application alleged comparable/probable earnings of $898.45 per week, which Tubemakers did not dispute.  The Arbitrator found Mr Villar’s actual earnings from 27 August 2007 to be $914.01 per week (Reasons, at [77]).  Therefore, Mr Villar has suffered no reduction in his earnings as a result of his right knee injury;

(d)if Mr Villar has suffered a reduction in his earnings since 2007, that reduction has resulted from the injuries he sustained in the course of his employment with Adecco and Grocon, or subsequent employers, and

(e)Mr Villar cannot resile from the alleged comparable/probable earnings of $898.45 per week in his wage schedule attached to the Application.  In any event, Mr Villar’s employment in 2007 could not be considered to be “the same or some comparable employment” and therefore should not be considered.

1. Section 40(2)(a) of the 1987 Act requires a determination of probable earnings but for injury “had the worker continued to be employed in the same or some comparable employment”.  The section does not dictate that a worker can only look to wages currently being paid by the employer with whom he sustained his or her injury.  However, the authorities cited by Mr Villar do not assist him.

1. In Forrest, the worker was a trainee-trotting driver who, at the time of her injury, was earning about $200.00 per week, most of which was spent on the horses.  As a result, her net income was “little or nothing” (Mahoney JA at 221A).  The trial judge assessed comparable earnings by reference to the award wage of a stablehand/rider under the Strapper and Stablehands (State) Award.  Adopting that method the worker’s probable earnings were held to be $360.30 per week.  In upholding the decision (subject to adjustment of the calculations) Mahoney JA held at 220:

“as a matter of principle, a court in estimating the uninjured earnings of an applicant will ordinarily have regard to what the applicant would have earned in the employment in which she was at the time of the injury rather than in some other comparable employment.  But that principle, to the extent that it is accepted, does not require that in every case the court must confine its attention to the same employment as that in which the uninjured applicant was engaged. Circumstances may make it appropriate for the court to assess the uninjured earnings by reference to another comparable employment.”

1. The High Court considered the meaning of the phrase “the same or some comparable employment” in Johnston v Commissioner of Railways [1973] HCA 46; (1973) 128 CLR 632 (‘Johnston’) in the context of section 11 of the Workers Compensation Act 1926, which was in substantially the same terms as section 40 of the 1987 Act.  The Court considered the situation where the worker was a “cleaner, acting foreman” at the time of his injury but the trial judge accepted evidence that he would have progressed to the position of an engine-driver and awarded him compensation on the basis that the wage of an engine-driver was the “same or some comparable employment”. Stephen J held at 640:

“If, in the relevant phrase of s 11(1)(a), ‘employment’ bears the meaning ‘occupation’ the reference to the worker continuing ‘to be employed in the same or some comparable employment’ means that the worker is to be treated as if he continued in the same or some similar occupation as that in which he was engaged when injured. Neither the same employer nor the same task, classification or rank is stipulated but this will occasion no difficulty; the Court is, by the subsection, required to form its own view of what would ‘probably’ have been the worker’s weekly earnings but for the injury and must, from the evidence before it, determine how the worker would have fared in his occupation had he not been injured.” (emphasis added)

1. At 642 his Honour concluded:

“It follows from the view which I have formed concerning the phrase ‘employed in the same or some comparable employment’ that when his Honour, having heard Johnston’s application for an award of compensation, made the findings of fact which he did, he was then required, in ascertaining the weekly amounts which Johnston would probably have been earning but for his injury, to postulate Johnston’s continued engagement in the occupation in which he was engaged when injured. On the facts as found Johnston’s occupation was that of an officer of the Commissioner employed in the locomotive branch of the Commissioner for Railways and in those circumstances his Honour was, in my view, required to act as he did and to pay regard to the promotion within his chosen occupation which Johnston would probably have received had he not been injured.” (emphasis added)

1. In the same case Mason J (as he then was) held (at 644):

“The subsection provides a yardstick by which weekly payments by way of compensation for incapacity are to be measured. It conforms more closely with the compensatory character of the provision that the weekly payments should be assessed by reference to the probability of what the employee would have earned in his occupation had he not been injured and had he continued in that occupation rather than that the weekly payments should be assessed by reference to probable earnings in the performance of the particular work or duties which the employee happened to be performing at the date of his injury.” (emphasis added)

1. In Australian Wheat Board v Pantaleo (1984) 3 NSWLR 530 (‘Pantaleo’) the Court of Appeal considered the situation where a secretary became a beautician after her injury. The trial judge calculated her potential earnings as an uninjured beautician (found to be $400.00 per week) and compared them to “her earnings situation” (at 534), which he found to be $350.00 per week, and he awarded the difference. The Court of Appeal set aside the decision because, among other reasons, the trial judge had not addressed whether the work as a beautician was “comparable” to that of a secretary. On that issue, Glass JA (with whom Samuels JA agreed) noted (at 545) that the evidence disclosed “no point of comparison” between the work of a beautician and that of a secretary.

1. Kirby P (as he then was) stated (at 540) that:

“Where the hypothesis required by s 11(1)(a) of the Act leads to the conclusion that there is a real prospect (as distinct from a fanciful speculation) that but for the injury the worker would have moved from the same employment to some other employment, the question is then raised as to whether that other employment is ‘comparable’. Only if it is, may the earnings it attracts be taken into account in computing the first limb of the formula. Judging comparability of employment requires commonsense and experience of the labour market and its variety such as judges of the Compensation Court acquire in performing their duties. It is essentially a factual question though regard may be had to a variety of indicia of comparability in this context. It may, for example, refer to the physical attributes of the former and the hypothesized job. It may refer to the career progression that could reasonably have been expected of the worker, uninjured. It may refer to the award classifications likely to be open to a person such as the injured worker. It may refer to the range of salaries that might reasonably have been within the worker’s pre-injury achievement, as a worker; whilst the decision-maker is involved in a hypothetical exercise, the requirement of comparability keeps the speculation within practical bounds. That is its objective. It should not be read narrowly as confined to physical attributes only. Nor is the speculation to be limited strictly to the orthodox career path of uninjured workers with the respondent employers, where evidence establishes the likelihood of other career prospects. It is a matter for the application of the commonsense and experience of the decision-maker in each case.”

1. Glass JA (at 545C) agreed with the President’s remarks “upon the general considerations which are made applicable by a practical commonsense test of comparability”. 

1. In Boyd, the worker sustained two injuries to his left eye whilst working three days per week as a permanent part-time employee.  The trial judge accepted his evidence that he intended to seek casual work similar to that he engaged in prior to the accident and assessed his probable earnings at $50.00 per week more than he in fact earned with the employer.  On appeal, the Court of Appeal held that the trial judge was entitled to accept and take into account the worker’s evidence that he intended to continue to seek casual work.  At 291 Beazley JA (Priestley and Handley JJA agreeing) said, “if in a given case the Court accepts, as a matter of fact, that an employee had an intention to engage in other work, that may be sufficient for the purposes of section 40.”

1. In Lloyd, the worker was a novice casual jockey who was injured when she fell from a horse during a race. The trial judge accepted evidence that, but for her injury, she would have fulfilled her wish to become a qualified electrician. He assessed her entitlement under section 36 of the 1987 Act by reference to the Strappers and Stablehands Award and her entitlement under section 37 of that Act by reference to the Electricians (State) Award. It is notable that the judge in that matter was wrong when he said (at 587) that the Court of Appeal upheld the trial judge’s decision in Pantaleo.  The employer’s appeal in Pantaleo was upheld and the matter was remitted to the Compensation Court for further consideration.

1. The evidence on this issue in the present matter is particularly brief.  Whilst Mr Villar is to be commended for his impressive work record, there is no evidence about his intended career path at the time he started work for Tubemakers.  I am left to consider the evidence of what he did, not what he may have intended.  The prospect of Mr Villar moving to different employment became a reality.  The question then arises as to whether that employment (labouring in the construction industry and formwork carpentry) can be said to be comparable to employment as a process worker in a pipe processing plant.  Mr Villar’s evidence about the nature of his duties with Tubemakers is of limited assistance, as he merely said that he was a process worker with Tubemakers.  In his “Statement From Injured Employee”, completed on 31 March 1993 with Tubemakers (B4 in the Application), he said that his “Ordinary Classification” was a “Pipe Preparer” in the processing department.

1. With Adecco, Mr Villar worked as a labourer in the construction industry.  The letter from Adecco dated 1 December 1999 (B8 in the Application) referred to Mr Villar’s duties including manual labour on a building site and that he was remunerated under the National Building and Construction Industry Award.

1. With respect to Grocon, Mr Villar’s evidence is that his work “involved formwork” (Mr Villar’s statement, 13 May 2008, page five).  Both before and after he worked with Grocon he worked as a formwork carpenter and I therefore infer that the work with Grocon was as a formwork carpenter.  This is consistent with the particulars of claim provided by his solicitor on 28 March 2003 (B16 in the Application).  Grocon’s “Employer’s Report of Injury” form dated 9 September 2002, refers to Mr Villar having been employed as a carpenter under an Enterprise Bargaining Agreement. 

1. I agree with Mr Villar’s submission that the Commission should calculate his probable earnings on a realistic basis and that it cannot be expected that he would have stayed with Tubemakers for the rest of his working life.  Applying a “commonsense test of comparability,” however, I am not satisfied that employment as a formwork carpenter, or as a labourer in the building industry, is either “the same” or “comparable” to employment as a process worker.  I am not satisfied that there is any “point of comparison” between the employment with Tubemakers, on the one hand, and Adecco and Grocon, on the other.  They are completely different job classifications in different industries that involve different duties and responsibilities.  They are not comparable.

1. This still leaves open the question of the appropriate figure for probable earnings in the present matter.  The figure set out in the wage schedule in Schedule A of the Application is $898.45 per week from 7 September 1999 to 12 March 2007.  This schedule was not challenged by any of the respondents and Tubemakers conducted its case on the basis that the figures in it were the figures Mr Villar relied on as his probable earnings but for the injury (section 40(2)(a)).  Whilst Mr Villar’s solicitor filed a further wage schedule on 4 December 2008, alleging different figures, at the oral hearing of the appeal the parties confirmed that this document was not relied on at the arbitration and no application was made to rely on it at the review. 

1. In these circumstances, and given my finding that labouring in the construction industry and formwork carpentry are not “the same or some comparable employment”, I do not accept that Mr Villar’s probable earnings should be assessed on the basis that Mr Dodd suggests.  As Mr Villar is now earning more than the probable earnings with Tubemakers, it follows that, notwithstanding that he clearly has a physical restriction as a result of that injury, he has no economic loss as a result of his 1993 injury and he has no current entitlement to any weekly compensation against Tubemakers.

As against the second and third respondents - misstating the issues and aggravation of disease

1. It is submitted on behalf of Mr Villar that:

(a)the Arbitrator failed to give consideration as to whether Mr Villar suffered an “injury” as a result of the nature and conditions of his respective employments with Adecco and Grocon in the nature of a “personal injury” as set out in section 4(a) of the 1987 Act, but only considered whether Mr Villar’s injuries fell within section 4(b)(i) or section 4(b)(ii). Therefore, the Arbitrator misconceived her enquiry;

(b)it was incumbent upon Adecco and Grocon to adduce evidence in support of their case that Mr Villar’s injuries could only be categorised as a disease or an aggravation of a disease;

(c)reference is made to Fletcher International Exports v Barrow [2007] NSWCA 244; (2007) 5 DDCR 247 (‘Barrow’);

(d)no evidence was adduced by Adecco or Grocon in support of their argument;

(e)that there are degenerative changes present does not necessarily indicate that there is a disease contracted by a gradual process or the aggravation of such a disease (Kelly v Glenrock Pastoral Co Pty Ltd and another (1994) 10 NSWCCR 178 (‘Kelly’), and

(f)in the absence of evidence it is impossible for the tribunal of fact to make a specific finding.

1. It is submitted on behalf of Adecco and Grocon that:

(a)the issue of “injury” was squarely raised at the arbitration (T23.46).  Having made relevant findings of “disease” it was unnecessary for the Arbitrator to direct her attention to whether the injury also consisted in the nature of a “personal injury”;

(b)there is ample evidence to support the Arbitrator’s findings that Mr Villar’s injury was in the nature of a “disease”;

(c)the issue of the proper characterisation of the injury is a legal question to be decided by the Commission.  It is of no consequence that no medical report contained the magical words “disease of gradual process”;

(d)the classic definition of disease is contained in Perry v Tanine Pty Ltd t/as Ermington Hotel and others (1998) 16 NSWCCR 253 (‘Perry’), which was referred to with approval by the Court of Appeal in Barrow;

(e)the evidence is entirely consistent with a finding of disease contracted by a gradual process superimposed upon pathology resulting from an initial frank injury in 1993, and

(f)so far as the lumbar spine is concerned the consensus of medical opinion is that Mr Villar has long standing degenerative changes that have been aggravated by work.

Disease Generally

1. Whilst I agree that the Arbitrator failed to consider whether Mr Villar suffered an injury within the terms of section 4(a) of the 1987 Act, I do not accept that there is no evidence to support the propositions advanced by Adecco and Grocon about the application of the disease provisions. Whether that evidence is ultimately persuasive requires careful consideration of all the evidence, the authorities and the submissions.

1. The Court of Appeal recently considered the term ‘disease’ in Barrow.  That case involved a claim for compensation as a result of overuse and repetitive trauma at work involving the worker’s shoulder.  Relying on a medical report that stated that there was “evidence of rotator cuff and bicipital tendinitis as a result of overuse and repetitive trauma at work” (at [60] of the Court of Appeal decision), the Arbitrator found that the worker suffered from a disease and awarded compensation accordingly.  The employer argued on appeal, as Mr Villar argues in the present matter, that there was no evidence of a disease because the doctors had not used that term in their reports.  Mason P (Santow and Tobias JJA agreeing) rejected that argument, and said (at [61]):

“The failure of an area of the body to cope with repeated stress imposed upon it, leading to pain and loss of function is capable of being found to be a disease process (see generally Armao v Ladue Holdings Pty Ltd (1992) 8 NSWCCR 440; Perry v Tanine Pty Ltd t/as Ermington Hotel (1998) 16 NSWCCR 253). There was in the present case a substantial body of medical evidence as to the nature and origin of the worker’s condition which allowed the Commission to conclude that the injury process as disclosed by the evidence was a disease. The evidence was also capable of showing that the disease had been aggravated by the nature and conditions of the work.” (emphasis added)

1. Acting Deputy President Snell considered the meaning of ‘disease’ in Toll Pty Limited v Bartimote [2007] NSWWCCPD 153 where, after referring to Perry, he observed (at [100]):

“In Mirkovic v Davids Holdings Pty Ltd [1995] NSWCC 19; (1995) 11 NSWCCR 656 Neilson J adopted the phrase ‘underlying morbid condition’ as one equivalent to the word ‘disease’, applying the discussion of Kirby P (as he then was) in O’Neill v Lumbey (1987) 11 NSWLR 640 at 646. Applying what was said in these cases, in my view it is appropriate to characterise the degenerative condition in the Respondent Worker’s cervical spine as a ‘disease’ within the meaning of section 4.”

1. It is not necessary for the doctors to use the word ‘disease’ before the Commission can make a finding that a worker’s condition is a disease within the meaning of sections 4, 15 and/or 16. A failure of an area of the body to cope with repeated stress imposed upon it, leading to pain and loss of function is capable of being found to be a disease.

1. Whether a finding of a disease or injury by way of aggravation of a disease is open is a question of fact depending on all the available evidence. 

The Right Knee

1. In respect of the right knee, there is abundant evidence that Mr Villar suffers from osteoarthritis in his knee.  That evidence is found in the radiologists’ reports (see [15] and [16] above) and Dr Harrison’s report of 20 August 2007 (see [30] above).  That condition is an underlying morbid condition that is appropriately classified as a disease. 

1. There is also evidence, which I accept, that that condition was aggravated, that is, the symptoms of the condition were made more serious in their effects upon Mr Villar (Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 639 (‘Semlitch’)), as a result of his work with Adecco (see Mr Villar’s evidence summarised at [14(i)] above and Dr Harrison’s evidence at [19]) and by his subsequent employment (see Dr Harrison’s evidence at [29] above).

1. I am not satisfied that Mr Villar suffered a “personal injury” within the meaning of section 4(a). I am fortified in this conclusion by the fact that Mr Villar gave no evidence that he experienced pain as a result of a specific or discrete event at work with Adecco and there is no evidence of any specific pathological change as a result of the work with Adecco. As Armitage CCJ observed (at [129]) in Castro v State Transit Authority (NSW) [2000] NSWCC 12; (2000) 19 NSWCCR 496 (‘Castro’):

“what is required for an ‘injury’ within par (a) [of section 4] to occur is a ‘sudden or identifiable pathological change’ in the body, whether internal or external.”

1. I find that Mr Villar suffered an injury to his right knee with Adecco in the nature of an aggravation of a disease under section 4(b)(ii) (an aggravation injury). That being so, the deemed date of injury is the date of Mr Villar’s incapacity (section 16(1)(a)(i)), that is, when he ceased work on 6 September 1999. Compensation is payable by the employer “who last employed the worker in employment that was a substantial contributing factor to the aggravation” (‘the last relevant employer’) (section 16(1)(b)). So far as the claim for weekly compensation from 7 September 1999 to 2 December 1999 is concerned, that employer was Adecco.

1. The next question is whether the effect of that aggravation was permanent or temporary.  Mr Villar’s evidence that he returned to work as a construction labourer on 3 December 1999 is consistent with Dr Khan’s evidence that the aggravation with Adecco was temporary and only lasted for “a period of months and resolved thereafter” (see [39] above).  For this reason, I accept Dr Khan’s evidence that the effect of the aggravation injury with Adecco was only temporary and I find that it resolved by 3 December 1999. 

1. If I am wrong on this issue and the effect of the aggravation injury with Adecco has continued beyond 3 December 1999, I am comfortably satisfied that, as a result of his subsequent employment as a formwork carpenter, Mr Villar suffered a further aggravation injury to his right knee to which his employment was a substantial contributing factor.  Therefore, Adecco is not the last relevant employer.  I make this finding on the basis of the following evidence, which I accept:

(a)Mr Villar’s evidence about the nature of his duties after 1999, which required him to lift heavy weights and climb stairs and scaffolding;

(b)Mr Villar’s evidence that he had difficulty coping with work as a formwork carpenter because of his right knee (Mr Villar’s statement of 13 May 2008, page nine);

(c)Dr Harrison’s evidence that Mr Villar’s subsequent periods of exposure to labouring work have “been exacerbating times” (see [22] above) to the process of wear and tear in his right knee, and

(d)Dr Mehta’s evidence that his work as a formwork carpenter “aggravated his problems of knee and back” (see [36] above). 

1. In these circumstances, even if (contrary to my finding) the effect of the aggravation injury with Adecco is continuing, Adecco is not the last relevant employer and is not liable to pay compensation to Mr Villar other than for the period found by the Arbitrator.

The Back

1. As with the knee claim, Mr Dodd argues that Mr Villar suffered an injury to his back as a result of the nature and conditions of his employment with Grocon (T12.28), but he did not, either at the arbitration or on appeal, identify the nature of that injury.

1. Dealing with a similar situation – an alleged aggravation of degenerative changes in the spine – Acting Deputy President Snell said (at [96]) in Stratco (NSW) Pty Ltd v Korunovic [2009] NSWWCCPD 16 that “Such conditions are regularly characterised as ‘diseases’ for the purposes of section 4 of the 1987 Act.” Though every case must be assessed on its own facts, I agree with that general observation.

1. Dr Deveridge’s evidence is unpersuasive that Mr Villar sustained a section 4(a) injury with Grocon. He merely referred to the medical imaging identifying “lower lumbar disc lesions” and, without addressing the issues before me or the potential relevance of Mr Villar’s subsequent employment, stated that the work at Grocon was responsible for the “ongoing back disability”. The evidence from Drs Gulisano and Kai Lee is equally unhelpful and unpersuasive on the issue of whether Mr Villar sustained a section 4(a) injury with Grocon.

1. Mr Villar’s evidence is that his work with Grocon was “very heavy” and involved a lot of lifting of heavy construction materials together with pushing and pulling.  In “about May 2002” he started feeling discomfort in his lower back, which he initially ignored.  The repetitive bending and lifting with Grocon “tended to aggravate” his lower back pain, but he gave no evidence of any specific or discrete incident or event that triggered his back symptoms.  Given this evidence and the fact that the medical evidence has not identified any “sudden or identifiable pathological change” (Castro), I am not satisfied that Mr Villar suffered a “personal injury” to his back under section 4(a).

1. The evidence as to the nature of Mr Villar’s back condition is found in the numerous radiological reports in evidence.  Those reports refer to bulging of the annulus of the L4/5 disc resulting in mild stenosis of the spinal canal and gas within the L5/S1 discs, indicating degeneration.  There are also degenerative marginal osteophytes at the vertebral endplates (see CT scan of 12 July 2002).  That evidence is consistent with the evidence in the CT scan of 11 October 2006 of facet joint osteoarthritis at L5/S1 and early spinal stenosis.  Drs Millons and Miniter also referred to Mr Villar having lumbo-sacral disc degeneration.  The pathology revealed in these scans, together with Mr Villar’s complaints of increasing pain and loss of function over time, easily satisfy me that the pathology in his lumbar spine is a morbid condition that is properly and fairly characterised as a disease. 

1. Whilst Dr Gulisano referred to the degenerative changes on the 2002 CT scan as having been “due to [Mr Villar’s] type of work”, that seems to me to be an overstatement, though it is consistent with Mr Villar’s work as a formwork carpenter having affected the degenerative changes in his lumbar spine.  After referring to the x-rays and 2002 CT scan, Dr Kai Lee diagnosed Mr Villar as having a “chronic injury” as a result of his work, though he did not identify the nature of the injury. 

1. This evidence is consistent with Mr Villar having aggravated the degenerative changes (disease) in his lumbar spine.  Dr Millons’ conclusion – that the degenerative changes at the lumbo-sacral disc were constitutionally based but may have been aggravated by the nature and conditions of Mr Villar’s work at Grocon – is also consistent with Mr Villar having sustained an aggravation injury.  Though it is certainly possible that a specific incident can cause an aggravation injury (see Rail Services Australia vDimovski & another [2004] NSWCA 267; (2004) 1 DDCR 648), the evidence that Mr Villar’s symptoms came on over time and that he did not injure himself in any specific incident, together with the findings in the radiological reports, all point to his injury being an aggravation injury.

1. I am therefore comfortably satisfied that Mr Villar suffered an aggravation injury with Grocon under section 4(b)(ii), namely, an aggravation of the degenerative changes (disease) in his lumbar spine and not a “personal injury” under section 4(a). I am not satisfied that sections 4(b)(i) and 15 apply (Kelly).

2. I also find that the aggravation was only temporary.  The evidence from Dr Kai Lee is that Mr Villar’s symptoms were slightly better after he ceased work in 2002.  At Dr Miniter’s examination on 16 September 2002, Mr Villar was able to flex his spine without difficulty, and the femoral nerve stretch test and the straight leg raising tests were normal (page four).  There were no obvious neurological signs in either limb and there was no power loss or altered sensation.  After noting that the CT scan demonstrated long-standing features of lumbo-sacral disc degenerative that was not related to the work place, other than “perhaps a matter of aggravation which would be short-term at best,” the doctor concluded that Mr Villar was fit for work as a carpenter with very few restrictions. 

1. Consistent with Dr Miniter’s opinion, there are no medical certificates declaring Mr Villar unfit for work beyond 30 November 2002.  Since then, Mr Villar returned to work as a formwork carpenter for lengthy periods for several employers.  Whilst Mr Villar continued to complain of back symptoms after November 2002, Dr Miniter’s evidence, the lack of evidence of medical treatment in late 2002 and 2003, together with Mr Villar’s evidence that his symptoms decreased and that he returned to work as a formwork carpenter until August 2007, comfortably satisfy me that the effect of the aggravation injury with Grocon ceased by 30 November 2002.  

1. If I am wrong on this issue and the effect of the aggravation injury with Grocon has continued beyond 30 November 2002 then, as the injury is a section 4(b)(ii) aggravation, section 16 comes into play and compensation is payable by the last relevant employer. After Grocon Mr Villar worked as a formwork carpenter for several employers between 2003 and August 2007. That work involved excessive lifting, carrying construction materials such as timber, steel frames, columns and the like, and placed “excessive and repetitive stress on [Mr Villar’s] lower back and right leg” (Mr Villar’s statement 6 November 2008, page two). Mr Villar stopped work as a formwork carpenter in August 2007 because he had “difficulty coping”.

1. Though this part of Mr Villar’s statement expressly refers to his knee, I infer that he was also having difficulty with his back.  This is consistent with Dr Mehta’s evidence in his August 2008 report that Mr Villar left the formwork carpentry industry “As this job aggravated his problems of knee and back”.  Mr Dodd submits that this statement is merely the doctor recording Mr Villar’s history.  Even if that is true, I do not believe this evidence can be so easily dismissed as of no weight.  Evidence of a history is evidence of the fact (Paper Coaters Pty Limited v Jessop [2009] NSWCA 1 at [42]) and is entitled to appropriate weight, depending on the circumstances of the case.

1. Thus the evidence comfortably establishes, and I find:

(a)Mr Villar continued to work as a formwork carpenter for a lengthy period after his aggravation injury with Grocon (Mr Villar’s statements);

(b)his work as a formwork carpenter involved excessive lifting and carrying of heavy weights that put repetitive stress on his back (Mr Villar’s statement of 6 November 2008);

(c)his work as a formwork carpenter aggravated his back problems (Dr Mehta’s report of 6 August 2008);

(d)there is evidence (though not conclusive) that Mr Villar has a whole person impairment of 5% as a result of the condition of his lumbar spine and that part of that impairment relates to the nature and conditions of his work as a formwork carpenter after he left Grocon in 2002 (Dr Millons’ supplementary report dated 30 October 2008), and

(e)in August 2007 Mr Villar sought different (lighter) work, as a baggage handler, because he had “difficulty coping” with work as a formwork carpenter (Mr Villar’s statement 13 May 2008).  I infer that his difficulty coping was because of his knee and his back symptoms, which had been aggravated by that work.

1. On the issue of whether the employment with the last relevant employer was a substantial contributing factor to the aggravation, I note that question of whether the substantial contributing factor test is satisfied is not solely a medical question, but calls for a consideration of all the evidence (Awder Pty Ltd t/as Peninsular Nursing Home v Kernick and anor [2006] NSWWCCPD 222 at [31]). There is no other cause of the aggravation of Mr Villar’s back symptoms (such as lifestyle factors or other activities) and the only logical conclusion, as a matter of commonsense, is that Mr Villar’s employment as a formwork carpenter after leaving Grocon was a, if not ‘the’, substantial contributing factor to the aggravation of the disease condition in his lumbar spine in that the work he performed made the disease more serious in its effects upon him (Semlitch), and that is the finding I make. 

1. At the oral hearing of the appeal, Mr Dodd argued that it was never put to Mr Villar that his symptoms had increased while he worked as a formwork carpenter and he has therefore been denied procedural fairness.  While it is correct that Mr Villar was not cross-examined, I do not accept that he has been denied procedural fairness.  Cross-examination is only allowed in the Commission by leave.  The issues in dispute were clearly defined in the documents filed by the parties.  The issue of the nature of Mr Villar’s injury and whether Adecco and Grocon were the last relevant employers was always known to the parties and it was open to Mr Villar to give oral evidence that his post-2002 employment had not increased his symptoms if he wished.  The evidence supports the Arbitrator’s finding as to the nature of Mr Villar’s injury and, for the reasons in this decision, I have reached a similar conclusion.  The clear evidence from Dr Mehta (a report tendered in Mr Villar’s case) is that Mr Villar’s work as a formwork carpenter “aggravated his problems”.  His “problems” were the pain and resulting restrictions from his right knee and back that forced him to seek lighter employment.  The only reasonable inference is that those problems had increased over time and that is the finding I make. 

1. I agree with Mr Dodd that the respondents carried the onus of proof on the section 16 issues. I am comfortably satisfied that they have discharged that onus.

1. It therefore follows that, though Mr Villar sustained an aggravation injury with Grocon, given that he worked as a formwork carpenter for several companies after 2002, Grocon is not the last employer who employed him in employment that was a substantial contributing factor to the aggravation and its liability to pay compensation does not extend beyond the award the Arbitrator made.

As against the Second and Third Respondents – Whether Mr Villar’s entitlement to compensation could be due to a combination of different types of injury

1. It is submitted on behalf of Mr Villar that:

(a)it is not appropriate to consider the effects of subsequent injuries when determining the nature of the injury suffered in the course of employment with a particular employer;

(b)the Arbitrator has sought to categorise Mr Villar’s injuries over his entire working life, rather than to focus on the nature of the injuries suffered with each respondent.  That Mr Villar suffered aggravations of a disease process with other employers does not delineate the injuries suffered while employed with the respondents in these proceedings, and

(c)the Arbitrator appears to have considered that the injuries must be placed in one category or another.  It is possible to have an eventual incapacity for work as a result of both “personal injury(s)” and disease processes and aggravations of disease.  That Mr Villar presently suffers from a disease process does not determine the nature of the injuries suffered at an earlier point of time with a particular employer.

1. It is submitted on behalf of Adecco and Grocon that:

(a)the Arbitrator did not seek to categorise Mr Villar’s injuries by referring to his employment with subsequent employers.  Having made a “disease” finding, it was appropriate for the Arbitrator to consider Mr Villar’s subsequent employment because it was then necessary to identify the employer who last employed the worker in employment to the nature of which the disease was due or the employer who last employed Mr Villar in employment that was a substantial contributing factor to the aggravation of the disease for the purpose of determining liability for claims, and

(b)Mr Villar continued to work as a formwork carpenter after he left Grocon and the Arbitrator was correct to find that he was subsequently engaged in employment to the nature of which the disease was due.

1. As a general proposition, I agree that it is not appropriate to consider the effects of subsequent injuries when determining the nature of the injury suffered by a worker in the course of employment with a particular employer. However, that is not what has been done. Given the findings made as to the nature of Mr Villar’s injury (an aggravation injury under section 4(b)(ii)), the case called for a consideration and application of the disease provision in the 1987 Act. Those provisions expressly provide for compensation to be paid by the last relevant employer. So far as the claim for weekly compensation from 27 August 2007 and the claim for lump sum compensation are concerned, neither Adecco nor Grocon fit that definition. It follows that, other than the awards made by the Arbitrator, Mr Villar is not entitled to any further award/s against either Adecco or Grocon.

1. I do not agree that the findings made have categorised Mr Villar’s injuries over his entire working life. The findings made have applied the legislation to the facts as found. Once a finding was made that Mr Villar suffered an aggravation injury, it was then necessary to apply the terms of section 16 of the 1987 Act. For the reasons given in this decision, I have reached substantially the same conclusion as the Arbitrator. I agree that the fact that Mr Villar has suffered aggravations of a disease with other employers does not ‘delineate’ the injuries suffered with the named respondents. The delineation or identification of those injuries depends upon the evidence, the factual findings, and the application of the legislation and authorities to those factual findings. That is what the Arbitrator did and, for the reasons given in this decision, I agree with her conclusions.

1. I agree that an incapacity can result from a “personal injury” (section 4(a)) and from a disease injury (section 4(b)(i)) and/or an aggravation injury (section 4(b)(ii)), and the fact that Mr Villar presently suffers from a disease does not determine the nature of his injury/s at an earlier point in time. However, the Arbitrator determined, and I agree, that Mr Villar’s injuries with Adecco and Grocon were aggravation injuries under section 4(b)(ii). That finding is based on a careful consideration of the whole of the evidence.

COSTS OF THE ARBITRATION

1. Though Mr Villar partially succeeded with his claim, the Arbitrator made no order as to costs, presumably because the matter still has to be referred to an AMS for assessment of the loss of efficient use of his right leg at or above the knee.  However, there is no valid reason why he should not have a costs order in his favour and I propose to make that order.  In view of the issues involved in the case, I certify the matter as complex and that there should be a 20% uplift.  I apportion costs equally between the three respondents.

CONCLUSION

1. Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I have concluded, for the reasons given in this decision, that the Arbitrator’s decision is correct and I agree with her conclusions.

DECISION

1. For the reasons given in this decision, the Arbitrator’s Amended Certificate of Determination dated 3 February 2009 is confirmed, subject to the amendment of paragraph nine to delete the reference to “permanent impairment” and insert “permanent loss of efficient use” and subject to the following additional order:

“11.The respondents are to pay the applicant worker’s costs as agreed or assessed.  Those costs are to be paid in equal proportions.  The matter is certified as complex and an uplift of 20% is to apply to those costs.”

COSTS OF THE APPEAL

1. Each party is to pay his or its own costs of the appeal.

Bill Roche
Deputy President

25 May 2009

I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE