Visy Board Pty Ltd v Nguyen - [2010] NSWWCCPD 101

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Visy Board Pty Ltd v Nguyen[2010] NSWWCCPD 101
APPELLANT:		Visy Board Pty Ltd
RESPONDENT:		Tan Duy Nguyen
INSURER:		CGU Insurance Limited
FILE NUMBER:		A1-1407/2010
ARBITRATOR:	Ms J Connelly
DATE OF ARBITRATOR’S DECISION:		25 May 2010
DATE OF APPEAL DECISION:		23 September 2010
SUBJECT MATTER OF DECISION:		Section 261 of the Workplace Injury Management and Workers Compensation Act 1998, notice of claim; proof of injury; admission of late evidence
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sparke Helmore
Respondent:		TK Legal
ORDERS MADE ON APPEAL:		The Findings recorded in the Certificate of Determination dated 25 May 2010 are confirmed. Orders 1 and 3 of the Certificate of Determination dated 25 May 2010 are confirmed. Order 2 of the Certificate of Determination dated 25 May 2010 is revoked and the following order made in its place: “2. Tender of a CT scan report from Southern Radiology dated 13 April 2010 is rejected.” Order 4 of the Certificate of Determination dated 25 May 2010 is amended to delete reference to the CT scan report dated 13 April 2010. The following order is made: “4. The documents to go to the AMS are the Application to Resolve a Dispute, the Reply, the documents attached to the Application to Admit Late Documents filed 14 May 2010.” The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

BACKGROUND TO THE APPEAL

Mr Tan Duy Nguyen, who is 37 years of age, commenced work with Visy Board Pty Ltd (the appellant) as a plate maker/machine operator in September 2000. Mr Nguyen received injury to his back in the course of that employment on 20 April 2007. He stopped work immediately and reported the circumstances of his injury to his supervisor.
Mr Nguyen had two periods of absence from duties by reason of severe back pain. He resumed duties on a return to work program provided by the appellant’s insurer through a rehabilitation provider in late October 2007.

Mr Nguyen has not, by reason of painful symptoms caused by the injury, returned to his full duties. He remains employed by the appellant.

On 6 January 2009 Mr Nguyen’s solicitors made on his behalf a claim for lump sums pursuant to s 66 and s 67 of the Workers Compensation Act 1987 (the 1987 Act). That claim was in respect of 16 per cent whole person impairment. In support of that claim a report of Dr Clive Sun dated 27 November 2008 was served with the notice of claim. Dr Sun expressed the opinion in that report that Mr Nguyen had suffered a 12 per cent whole person impairment in respect of the lumbar spine and five per cent whole person impairment in respect of the thoracic spine. The combined value of those assessments was stated to be a total of 16 per cent whole person impairment.
In correspondence dated 6 October 2009 the appellant’s insurer declined Mr Nguyen’s claim. That correspondence contained a statement that it was a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Reasons were stated in that correspondence for the insurer’s decision to dispute the claim. That notice is in very broad terms however it is clear that, relevantly, the insurer disputed the occurrence of injury to Mr Nguyen’s thoracic spine and disputed that a claim for compensation had been made as required by s 261(1) of the 1998 Act.
The dispute concerning Mr Nguyen’s entitlement to lump sum payments led to the registration of an Application to Resolve a Dispute with the Commission on 23 February 2010. That application came before an Arbitrator for conciliation/arbitration on 19 May 2010. The matter proceeded to arbitration at which time the appellant conceded that Mr Nguyen had received an injury to his lumbar spine as alleged but maintained its denial of injury to his thoracic spine.
Following the hearing the Arbitrator stated her reasons for certain findings and orders which were made in favour of Mr Nguyen. A Certificate of Determination concerning those findings and orders was issued on 25 May 2010.

THE DECISION UNDER REVIEW

The Certificate of Determination, dated 25 May 2010 records the Arbitrator’s findings and orders as follows:

“The determination of the Commission in this matter is as follows:

FINDINGS

1.By consent liability is admitted in respect of an injury to the applicant’s lumbar spine on 20/4/07.
2.I find that the applicant suffered an injury to his thoracic spine on 20/4/07 within the meaning of s4 of the Workers Compensation Act 1987 (the “Act”).

3.Pursuant to s9A of the Act I find that the applicant’s employment with the respondent was a substantial contributing factor to the injury on 20/4/07.

ORDERS
1.By consent the documents attached to the Application to Admit Late Documents filed on 14/5/10 are admitted into evidence.
2.The CT scan report from Southern Radiology dated 13/4/10 is admitted into evidence.
3.This matter is remitted to the Registrar for referral to an AMS for assessment of whole person impairment of the lumbar and thoracic spines with a date of injury of 20/4/07.
4.The documents to go to the AMS are the Application to Resolve a Dispute, the Reply, the documents attached to the Application to Admit Late Documents filed 14/5/10 and the CT scan report from Southern Radiology dated 13/4/10.

A sound recording of the reasons given is available to the parties.”

On 17 June 2010 the appellant filed with the Commission an application seeking leave to appeal against the decision of the Arbitrator.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the arbitrator erred in:
(a)   failing to give adequate reasons for her decision both as to the disputed injury and the giving of notice;
(b)   failing to have regard to the evidence when determining the question as to whether Mr Nguyen suffered an injury to his thoracic spine, and
(c)   admitting into evidence, over objection, the CT scan dated 13 April 2010.

The issues as summarised above have been taken from the appellant’s written submissions provided in support of the appeal.

ON THE PAPERS REVIEW

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.

LEAVE

It is submitted on behalf of Mr Nguyen that the threshold provisions of s 352 of the 1998 Act, concerning time requirements for the bringing of an appeal and quantum of compensation at issue on the appeal, have not been satisfied. It is also argued that the Arbitrator’s determination is of an interlocutory nature within the meaning of s 352(8) and is thus one in respect of which leave to appeal may not be sought.

Time

An appeal can only be made within 28 days after the making of the decision appealed against: s 352(4). Mr Nguyen submits that, having regard to the date of registration of the appellant’s application, the appeal has been brought out of time.
It is correct, as noted by Mr Nguyen in his submissions, that the appellant’s application is endorsed with a stamp affixed by the Registry of the Commission indicating that the application had been registered on 6 July 2010. That application has also been endorsed by the Registry with a stamp indicating that the application had been received by the Commission on 17 June 2010. There is no information on the Commission file to indicate a reason for the delay between receipt of the application and the endorsement of the registration stamp on 6 July 2010.
The question arises as to whether the appeal has, as required by s 352(4), being “made within 28 days after the making of the decision appealed against”. Procedural requirements concerning the conduct of appeals against an Arbitrator’s decision are prescribed by the Workers Compensation Commission Rules 2006 (‘the Rules’). So far as those rules are presently relevant Part 16.2 subrules (1) and (2) apply. Those subrules state:
“16.2 Appeal against Arbitrator’s decision
(1)A party to any proceedings applying for leave to appeal under section 352 of
the 1998 Act against a decision of an Arbitrator must lodge the application within 28 days after the making of the decision, or within such extended time for making the appeal as may be ordered under subrule (11).
(2)For the purposes of subrule (1), a decision is made, in respect of a dispute,
when the Commission issues a certificate as to the determination of the dispute as required by section 294(1) of the 1998 Act.”
It may be seen that the Rules require lodgement of any application with respect to the making of an appeal within 28 days after the making of the decision. The decision in the present matter was made on 25 May 2010 being the date of the Certificate of Determination. The endorsement made by the registry upon that application, indicating that it had been received by the Commission on 17 June 2010, provides evidence that the appellant lodged the application within the 28 days as prescribed by the Rules. It follows that the appeal has been made within 28 days after the making of the decision appealed against. I reject Mr Nguyen’s argument that the appellant has failed to meet the time requirements as prescribed by the 1998 Act and the Rules.

Monetary Threshold

Mr Nguyen submits that the quantum of the award made by the Arbitrator does not meet the threshold as prescribed by s 352(2) of the 1998 Act. That sub section provides:
“(2) The Commission is not to grant leave to appeal unless the amount of
        compensation at issue on the appeal is both:
(a)   at least $5,000 (or such other amount as may be prescribed by the
regulations), and
(b)   at least 20% of the amount awarded in the decision appealed against.”

In the present matter no monetary award has been made by the Arbitrator. In those circumstances, as has been determined in numerous earlier decisions of the Commission on appeal, the amount of compensation at issue on the appeal is to be determined having regard to the amount of compensation at issue in the proceedings heard by the Arbitrator. As was stated by Deputy President Fleming in Grimson v Integral Energy [2003] NSWWCCPD 29 at [30]:
“The ‘amount of compensation at issue on the appeal’ is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularised by the applicant”.
The quantum of Mr Nguyen’s entitlement is presently unknown given the need to have his lump sum claim in respect of whole person impairment assessed by an Approved Medical Specialist (AMS). He has particularised his claim in a sum well in excess of the threshold as prescribed by s 352(4). His evidence supports that claim. In the circumstances I conclude that the dispute between the parties concerning the occurrence of an injury to Mr Nguyen’s thoracic spine places in issue not only that amount of compensation to which he may be entitled pursuant to s 66 but places in issue his entitlement to a sum pursuant to s 67. I conclude that the quantum of compensation ‘at issue’ in this matter exceeds the threshold as prescribed in s 352(2)(a). The provisions of s 352(2)(b) have no relevance having regard to the fact that no compensation has yet been awarded (Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD 5). I conclude that the monetary threshold has been met.

Interlocutory

Mr Nguyen submits, given the provisions of s 352(8) of the 1998 Act and that which is provided by clause 200B of the Workers Compensation Regulation 2003, that an appeal does not lie from the determination made by the Arbitrator. It is put that “a decision capable of appeal does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.” It is noted in that submission that Clause 200B prescribes that all preliminary or interim orders, determinations, rulings and directions are of an interlocutory nature and are prescribed for the purposes of s 352(8). This submission appears to overlook the fact that one of the issues for the Arbitrator’s determination concerned the occurrence of injury involving Mr Nguyen’s thoracic spine. The Arbitrator has made a finding of fact in Mr Nguyen’s favour concerning that allegation. That finding of injury constitutes a finding as to liability and is binding upon the parties. Such finding of injury defines the parties’ rights and liabilities and as such is a determination which finally disposes of the rights of the parties in the sense as addressed by Gibb J in Licul v Corney [1976] HCA 6; [1976] 50 ALJR 439 (at 443-444). Such a determination is not “interlocutory” within the meaning of the s 352(8). Mr Nguyen’s submission that an appeal may not be made against the Arbitrator’s determination must be rejected.
The threshold requirements as to time and quantum specified in s 352 have been met. In all the circumstances, and having regard to the arguments raised on appeal, I conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.

FRESH EVIDENCE

The appellant seeks leave pursuant to s 352(6) of the 1998 Act to tender fresh or additional evidence. That evidence consists of two extracts from the Medical Directory of Australia which relate to the nature of practice and qualifications of both Dr Nicholas Carlos Doong and Dr Van Nghia Nguyen. Each of those practitioners is a general practitioner and each has treated Mr Nguyen. The documents which are the subject of the appellant’s application include a notation that each of those practitioners speaks the Vietnamese language. Vietnamese is Mr Nguyen’s first language.
The addition of fresh or additional evidence on appeal from a decision of an Arbitrator requires consideration as to whether that material is probative and attention must be given to the question as to whether the material could not, with reasonable diligence, have been capable of presentation at the time of the original hearing. Overriding those considerations is the need to meet the demands of justice.
The appellant submits that the Arbitrator, when considering the argument raised concerning failure to give notice of claim, has placed considerable emphasis upon Mr Nguyen’s “limited grasp of the English language”. The purpose of the application seeking leave to adduce the fresh evidence is to demonstrate that Mr Nguyen had the opportunity of discussing relevant matters with both Dr Doong and Dr Nguyen in the Vietnamese language. It is stated that the Arbitrator’s emphasis upon the subject of language difficulties was not a matter anticipated by the appellant when preparing for and presenting evidence on the original hearing. The appellant’s argument apparently refers to the observation made by the Arbitrator (at T28) where it was stated:
“I would be satisfied to a civil standard that notice was given. The claim form says ‘back’ which, in turn, encompasses lumbar and thoracic. I don’t expect an injured worker, particularly someone for whom English is not a first language, to appreciate the difference between the two.”
Mr Nguyen objects to the appellant’s application concerning admission of the fresh or additional evidence. It is put that the evidence in question was available at the time of the hearing and that it is not of such probative value that there is a high degree of probability that it would lead to a different outcome. It is further argued that, in the interests of finality of litigation, the appellant’s application should be rejected.
I accept the appellant’s argument that the language difficulty to which the Arbitrator has referred in the course of her reasons is a matter that might not have been anticipated when the matter was prepared for hearing. On balance I consider it is in the interests of justice that the extracts relating to the practices of both Dr Doong and Nguyen should be admitted as additional evidence on this appeal and I so order.

EVIDENCE

The evidence before the Arbitrator included all those documents attached to the Application to Resolve a Dispute and those documents attached to the Reply. It is noted by the Arbitrator (at T2) that Mr Nguyen sought to rely upon those documents attached to an Application to Admit Late Documents which had been forwarded to the Registry of the Commission under cover of letter from his solicitors dated 14 May 2010. Those documents were extremely voluminous. The transcript records that Mr Nguyen’s counsel proposed to make reference only to specific documents. It appears that, at the Arbitrator’s suggestion, relevant documents were extracted from the material that had been attached to the Application. That material was copied and there is included on the Commission file a separate bundle of documents which have been tagged. It is clear, having regard to the submissions put to the Arbitrator, that the documents comprising that bundle represented those documents upon which Mr Nguyen relied. I note that an order was subsequently made by the Arbitrator that all documents attached to that application were to be admitted into evidence.

Mr Nguyen

There was in evidence a written statement signed by Mr Nguyen dated 14 September 2009. That statement contained details of the injury suffered by Mr Nguyen on 20 April 2007 and his subsequent treatment. It was stated that at the time of the injury he felt severe pain in his back and that “the pain went from my lower back up to the middle of my back to the area between my shoulder blades”. It was stated that the appellant’s insurer has always accepted liability for weekly benefits during absences from work as well as medical expenses. Mr Nguyen states that in 2009, following a return to work program, he returned to his original job however worked on a smaller machine which did not involve lifting or carrying weights similar to those handled by him before the injury. He described his pain as being in his lower back which travels to his buttocks and right knee and upwards to the area between his shoulder blades. It is stated that the pain is present constantly and on occasions travels to his neck and shoulders.
A copy of the notice referred to in [5] above was attached to Mr Nguyen’s Application. As earlier noted that notice is in very broad terms however reference is made to s 33 of the 1987 Act and the statement “no entitlement to weekly benefits due to thoracic/cervical spine” is made.
A number of medical reports were attached to Mr Nguyen’s Application. Those reports were prepared by Dr S Woolnough, Dr David Spencer, Dr G J McGroder and Dr N Doong. Dr Sun’s report noted at [4] above was in evidence. Detail of that medical evidence is addressed below.
The bundle of documents to which I have referred at [29] above includes copies of an Injury Management Plan dated 10 July 2007 and copies of reports from Ms Jacqueline Winton, occupational therapist. Also included in that bundle are copies of Dr Woolnough’s handwritten clinical notes, and reports from Dr David Spencer and Dr Nicholas Doong. These documents each contain notations relating to the symptoms experienced by Mr Nguyen following injury. Detail of these documents is addressed below.

The Arbitrator, following an application made on behalf of Mr Nguyen, permitted short oral evidence to be given by him concerning the argument raised by the appellant as to notice. That evidence is recorded in a transcript of the proceedings which has been prepared and made available to both parties. In response to his counsel Mr Nguyen stated that his ability to speak, read and write English was “not good”. He stated that he could not read much English. Mr Nguyen was shown a copy of the claim form which had been attached to the Reply. Mr Nguyen stated that he had completed the form himself with the assistance of his family. The document had been handed to him by the appellant. Mr Nguyen’s attention was drawn to the entry in that claim form of the words “my back”. When asked by his counsel as to what he understood those words to mean, Mr Nguyen stated “I mean my whole back from the upper down to the lower part”. Mr Nguyen also stated that his reference to L5/S1 disc protrusion was taken from a report which accompanied an x-ray of his back. He stated he did not understand what that report meant. He further stated that he did not know what steps had to be taken to validly bring a claim. He further stated in evidence that soon after his injury he reported to the supervisor that he had pain in his “whole back”.
Mr Nguyen was cross-examined in the course of which he agreed that he had never had an x-ray or bone scan or CT scan or an MRI scan for any area of his back other than his lower back.
In re-examination Mr Nguyen was shown a document which was said to be dated 13 April 2010 which was tendered by counsel. The document was perused by counsel appearing for the appellant and identified by him as a CT study of the cervical spine and the thoracic spine of Mr Nguyen. That study had been arranged on referral by Dr Doong. It was stated by counsel for Mr Nguyen that the only purpose of his tender of the document was “to show that the answer that he gave was incorrect”. It is clear that counsel was referring to Mr Nguyen’s responses to questions concerning investigations of his spine.
The transcript records discussion between the Arbitrator and counsel concerning this document at which time counsel for the appellant made it clear that his client objected to the document “going to an AMS”. The Arbitrator does not appear to have made a formal ruling as to the admissibility of that document at that time however it is clear that she has treated the document as being in evidence before the Commission and subsequently made an order as to its admissibility and a direction that the document be provided, along with other material, to the AMS.

Visy Board

The Reply filed by the appellant appears as an attachment to an Application to Admit Late Documents filed with the Commission on 23 March 2010. It is clear that the Arbitrator had granted leave to the appellant to rely upon all that material attached to that Reply. A number of medical reports, some of which had been attached to Mr Nguyen’s application, were relied upon by the appellant. Among those reports are two MRI scan reports relating to Mr Nguyen’s lumbo-sacral spine. Also attached to that Reply is a report of a CT study of Mr Nguyen’s lumbar spine dated 2 June 2007 prepared by Dr K Plehwe. Detail of these various reports, where relevant, is addressed below. A large number of medical certificates presented by Mr Nguyen were also in evidence.
A five page Workers Compensation Claim Form addressed to the appellant’s insurer which was signed by Mr Nguyen dated 10 August 2007 was attached to the Reply. That document states that Mr Nguyen requires the services of an interpreter in the Vietnamese language. Under the heading “injury details” the following description appears:
“I have a pain in my back while I was pulling the plate from the wash cut”.
The claim form also includes the following notation under the heading “description of injury (eg concussion and broken right arm)”:
“L5/S1 Disc protrusion.”
The date of injury was stated to have been 20 April 2007.
The claim form has a notation under the heading “treating doctor’s details” which includes the name of Dr Woolnough as well as the date of initial consultation being 16 May 2007. Under the heading “diagnosis of injury (refer to medical certificate)” the following entry has been made:
“Mechanical low back pain”.

THE ARBITRAL PROCEEDINGS

Notwithstanding the breadth of the notice issued by the appellant’s insurer pursuant to s 74 of the 1998 Act, the matters in dispute before the Arbitrator were limited to:
(a) an assertion by the appellant that Mr Nguyen had failed to comply with the requirements concerning notice of claim with respect to injury to his thoracic spine as required by s 261 of the 1998 Act, and
(b) whether Mr Nguyen had received an injury to his thoracic spine.

The occurrence of an injurious event as alleged by Mr Nguyen occurring on 20 April 2007 was not in issue. It was conceded by the appellant that as a result of that injury Mr Nguyen had received injury to his lumbo-sacral spine.

Mr Nguyen’s submissions before the Arbitrator

Counsel for Mr Nguyen addressed the appellant’s assertion that there had been a failure to comply with the requirements as to notice of claim as found in s 261 of the 1998 Act. It was counsel’s argument that the claim form which is in evidence “was effective”. It also appears that an argument was advanced that, if Mr Nguyen had failed to comply with the requirements as to notice of claim, he had a “reasonable excuse”. That excuse was stated to be that Mr Nguyen thought he had made a claim; he had never had a previous workers compensation claim; he is not legally trained and that there was ample evidence to permit an inference that there was “a reasonable explanation of why the claim was not made”.
The balance of the submissions put on behalf of Mr Nguyen addressed the question as to whether, on the evidence, a finding may be made that Mr Nguyen suffered an injury to his thoracic spine. It was acknowledged in the course of those submissions that the injury to the low back was “clearly the predominant factor”. Reference was made to the various medical and other records where notations had been made, by those who had examined Mr Nguyen, of pain in areas of his spine other than the low back.

Visy Board’s submissions before the Arbitrator

Counsel for the appellant drew attention to the entry in the claim form which localised the injury as being to the lower back. It was acknowledged in the course of submissions that there may well be notations of pain radiating to other parts of the anatomy but it was argued such notations do not “make it an injury”.
It is implicit in submissions as recorded in the transcript that Mr Nguyen’s failure to specify injury to the thoracic spine in the claim form prevents that document from constituting notice of claim as required by the 1998 Act.
Counsel accepted that there had been complaint concerning pain in locations other than the low back, however it was put that the only consistent complaint related to lower back pain which would suggest that the injury was to the low back alone. Counsel noted that the allegation of injury to the cervical spine had been abandoned by Mr Nguyen. Whilst the allegation concerning injury to the thoracic spine was pressed it is not clear, it was submitted, as to what particular “part” of the thoracic spine has allegedly been injured. It was put that the Arbitrator would not be satisfied that such an injury occurred. Counsel proceeded to deal with the individual entries as found in the medical evidence and clinical notes as well as the medical certificates which were attached to the Reply. It was again accepted by counsel that Mr Nguyen complained of pain in parts of his anatomy other than his low back, including his neck, into his shoulder blades, in his central back, upper back or thoracolumbar region. Counsel also noted complaints of pain in the chest and down into the legs. It was again put that such complaint does “not make an injury”.
It was further put on behalf of the appellant that the medical evidence did not support a finding that Mr Nguyen had suffered “unremitting” pain throughout his spine “from the neck down to the lower reaches” since the subject injury.

THE ARBITRATOR’S DECISION

The Arbitrator made a finding that she was satisfied that notice had been given concerning Mr Nguyen’s claim in respect of injury to his thoracic spine. Reference was made in the course of her reasons to the use of the word “back” in the claim form presented by Mr Nguyen. It was found that such expression “encompasses lumbar and thoracic”. It was the Arbitrator’s conclusion that a worker, being one for whom the English language is not a first language, should not be expected to appreciate the difference between lumbar and thoracic levels of the spine. The Arbitrator made reference to the clinical notes compiled by Dr Woolnough to whom Mr Nguyen was sent by the appellant. It was observed by her that those notes record “that the thoracic spine is injured as well as the lumbar”. The Arbitrator also noted that there were subsequent notations made by Dr Woolnough of complaints relating to the thoracic level of Mr Nguyen’s spine.
The Arbitrator proceeded to state that, had she made a finding that the claim was made “outside time”, she would accept “the explanation” that the thoracic spine was intended by Mr Nguyen to be included in circumstances where the word “back” was used.
The Arbitrator acknowledged that the “clear focus” of treatment had been Mr Nguyen’s lumbar spine however accepted that there has been ongoing complaint to the various medical practitioners of pain in the thoracic spine. The Arbitrator found that the medical and other evidence overwhelmingly supported a finding of injury to the thoracic region and that there had been ongoing complaints of pain with respect to that region of the spine. In the circumstances the Arbitrator made a finding of injury to Mr Nguyen’s thoracic spine in the course of his employment on 20 April 2007.
The Arbitrator proceeded to remit the matter to the Registrar for referral to an AMS for “assessment of whole person impairment of the lumbar and thoracic spines”. The documents to be forwarded to the AMS were to include the CT scan report from Southern Radiology dated 13 April 2010.

SUBMISSIONS, DISCUSSION AND FINDINGS

The alleged failure to give notice of claim (s 261 of the 1998 Act)

There is a deal of confusion concerning the defence raised by the appellant founded upon the suggestion that Mr Nguyen had failed to give notice of claim as required by the legislation. It was plainly stated in the s 74 notice issued by the insurer that the suggested failure to notify related to the claim in respect of entitlement to lump sums by reason of alleged injury to the thoracic spine. That was made reasonably clear by counsel at the hearing before the Arbitrator where it was stated (T4.55) “we say there is no claim”. The confusion to which I have referred arises by reason of the submission on this appeal by the appellant where it is put (at 2.2) “the Appellant appeals the determination made by Arbitrator Connolly [sic] that [Mr Nguyen] did suffer [sic] give notice of an injury [sic] to the thoracic spine and further that [Mr Nguyen] did suffer an injury to the thoracic spine”.
It may be seen that the s 74 notice specified a dispute concerning liability founded upon non-compliance with the notice requirements which relate to the making of a claim (s 261), whereas on appeal the submissions direct attention to a suggested failure to give notice of injury. No dispute concerning notice of injury was particularised in the s 74 notice. Requirements as to notice of injury are stipulated by the provisions of s 254 of the 1998 Act, which section was not particularised in the insurer’s notice. The suggested failure to give notice of injury as required is a matter which has not been previously notified and thus may not be referred for determination by the Commission (s 289A of the 1998 Act).
It must also be said that the submissions concerning notice both before the Arbitrator and on this appeal lack precision. It is reasonably clear that the appellant asserts that Mr Nguyen is barred from recovery in respect of whole person impairment arising from injury to his thoracic spine given his failure to comply with the provisions of s 261. That section, so far as is relevant provides:
“261   Time within which claim for compensation must be made
(1)       Compensation cannot be recovered unless a claim for the compensation has
been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2)        …
(3)For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
(4)The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either:
(a)the claim is made within 3 years after the injury or accident
happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.”
The confusion concerning the nature of the dispute concerning notice of claim has been compounded by the Arbitrator’s observations in the course of her Reasons found at T28.5-15 where it was stated:
“The respondent denies liability for an injury to the thoracic spine and also denies that there was notice of the injury given or that the claim was made within time.”
The Arbitrator has incorrectly stated that the appellant “denies that there was notice of the injury given”. There is in evidence a claim form signed by Mr Nguyen addressed to the appellant’s insurer dated 10 August 2007. That claim form is in respect of unspecified workers compensation benefits, however the acknowledgement included in that form signed by Mr Nguyen relates to the likelihood of there being payment of weekly benefits. The injury is identified as I have summarised at [39]-[41] above. There can be no doubt that provision by Mr Nguyen of the claim form constituted notice of injury within the meaning of s 254 of the 1998 Act. That notice of injury incorporated notice of a claim with respect to, at least, weekly benefits. In the circumstances the claim form constitutes both notice of injury and notice of claim in respect of those benefits.
Having regard to the provisions of s 261(3) Mr Nguyen may be considered to have made a claim as required by that section at the time the claim form was presented notwithstanding the fact that that claim “did not relate to the particular compensation in question”, that is lump sum compensation.
The appellant’s argument concerning non-compliance with the notice provisions is founded upon a suggested failure to specify injury to the thoracic spine. It was held by Roche DP in Warwick Hobart t/as Terry White Chemists v Pietrzak [2006] NSWWCCPD 315 that the word “injury” means “injurious event” as it appears in s 254. A distinction was drawn by the Commission in that matter between the “pathology said to have resulted from the injurious event” and the occurrence of the event itself. It was stated (at [56]):
“A worker is not expected to know the exact nature and extent of his injury at the time of initial notification. Any other interpretation of ‘injury’ in this section would lead to the unsatisfactory situation of a worker who gives notice of an upper back strain being barred from claiming compensation in the event that medical investigations subsequently reveal that he or she in fact sustained a lumbar disc injury. There may well be arguments about causation, but provided the evidence supported a connection between the injurious event and the subsequently discovered lumbar disc lesion, the worker would not be barred from recovering compensation because he or she did not initially give ‘notice of injury’ for the correct body part.”
Given my conclusion that the provision of the claim form constitutes both notice of injury (s 254) and notice of claim (s 261), Mr Nguyen’s claim with respect to whole person impairment arising from the alleged thoracic injury is to be taken as having been made at the time of presentation of the claim form (s 261(3)). In the circumstances, the appellant’s argument concerning Mr Nguyen’s suggested failure to give notice of claim as required by the legislation must be rejected.

Alleged injury to thoracic spine

Since the passage of the amendments to the workers compensation legislation in 2002, a determination concerning entitlement to a lump sum for whole person impairment arising from injury to the spine involves firstly a decision, to be made by an Arbitrator, as to liability which involves determination of the occurrence or otherwise of an injury. The distinction between the occurrence of an injurious event and the pathological consequences of such an event is of particular significance in the case of alleged injuries to the spine. The Guides to the Evaluation of Permanent Impairment published by the American Medical Association (AMA5) are to be utilised by an AMS in accordance with the WorkCover Guides. AMA5 Chapter 15, as modified by the WorkCover Guides, is to be used by an AMS when determining the existence and extent of any whole person impairment arising from spinal injury. That chapter distinguishes four regions of the spine namely the cervical, thoracic, lumbar and sacral vertebrae and associated soft tissues. A medical dispute concerning the degree of permanent impairment of a worker as a result of an injury as found by the Commission is to be assessed by an AMS (s 65(3) of the 1987 Act). Referral of such a medical dispute is regulated by the provisions of s 321 of the 1998 Act. That section provides:
“321   Referral of medical dispute for assessment
(1)       A medical dispute may be referred for assessment under this Part by a court,
the Commission or the Registrar, either of their own motion or at the request
           of a party to the dispute. The Registrar is to give the parties notice of the
           referral.
(2)       The parties to the dispute may agree on the approved medical specialist who
is to assess the dispute but if the parties have not agreed within 7 days after
the dispute is referred, the Registrar is to choose the approved medical specialist who is to assess the dispute.
(3)       The Commission may not refer for assessment under this Part a medical
dispute concerning permanent impairment (including hearing loss) of an injured worker.
(4)       The Registrar may not refer for assessment under this Part:
(a)     a medical dispute concerning permanent impairment (including hearing
loss) of an injured worker where liability is in issue and has not been determined by the Commission, or
(b)   a medical dispute other than a dispute concerning permanent
impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).”
In the present matter the appellant, as earlier noted, concedes that the injurious event which occurred on 20 April 2007 caused injury to the lumbar spine and it is accepted that an appropriate reference should be made to an AMS for assessment of any resultant whole person impairment. What remains in dispute is the occurrence of injury, as alleged by Mr Nguyen, to his thoracic spine. A determination as to whether injury occurred to Mr Nguyen’s thoracic spine is a question as to liability and is one to be determined by the Commission before remitter for the purpose of reference to an AMS. The method of assessment which is prescribed in AMA 5 and adapted by the WorkCover guides includes DRE (diagnosis related estimate) categories which differentiate between injury to the lumbar spine and injury to the thoracic spine. By reason of that differentiation appropriate referral needs to be made by the Registrar with respect to the Commission’s finding as to the pathological consequences of the injurious event.

The appellant challenges the Arbitrator’s finding that Mr Nguyen suffered injury to his thoracic spine upon the basis that her factual conclusion was “inconsistent with the weight of medical and factual evidence”. Reference is made to the evidence of Dr Woolnough, Dr McGroder, Dr Spencer and Dr Doong. The appellant in the course of submissions seeks to emphasise those notations made by the medical practitioners which focussed upon Mr Nguyen’s complaint of low back or lumbar pain. Reference is also made to Mr Nguyen’s statement concerning the nature of the pain experienced by him at the time of his injury. That description is contrasted with the notations made by Dr Nguyen in his clinical notes which were compiled between 21 April 2007 and 12 May 2007 (wrongly stated by the appellant to be a date in August 2007). The point is made in submissions that “there is not one single reference to symptomatology in the applicant’s thoracic spine or indeed any radiation of symptoms into the thoracic spine”.
Dr Woolnough’s evidence includes a report dated 27 March 2008 which is relied upon by Mr Nguyen. That report is addressed to Dr Spencer and, as noted by the appellant in its submissions, reference is made, when symptoms are summarised, to “intermittent radiation to the lower thoracic area and left thigh”. An examination of Dr Woolnough’s clinical notes which have been produced and are in evidence reveals entries dated 7 June 2007 which include complaint of thoracic pain and a sketch of a torso where Dr Woolnough has noted a point of tenderness which appears to be in the region of the thoracic spine. This entry was noted by counsel for Mr Nguyen in the course of submissions before the Arbitrator. Dr Woolnough in his clinical records notes, on 22 October 2007, complaints made by Mr Nguyen concerning pain in the “left lumbar region to the left thigh also radiation to left chest wall and post aspect of upper back on left”. A notation was made by Dr Woolnough, on 4 March 2008, of complaint of pain experienced by Mr Nguyen extending to the “central back”.
The evidence from Dr McGroder is to be found in five reports dated between June 2007 and May 2008 which were relied upon by Mr Nguyen. In the first of those reports dated 26 June 2007, Dr McGroder records that the pain complained of was “lower back pain” however a notation is made that pain was also reported in “both buttocks and the pain radiates higher into the back”. In his report dated 23 October 2007 Dr McGroder recorded pain in the lower back as before which “radiated to his left buttock and further up towards his chest area”.
Dr Spencer, in his report dated 17 December 2008, recorded that, on examination, Mr Nguyen “had very tentative spinal movements very generally between the lumbosacral level to the thoracolumbar junction”.
The report of Dr Doong dated 9 January 2010 included a statement as to diagnosis being “low back pain due to thoracic lumbar sprain with right L5 radiculopathy and documented disc tears at L3/4 and L4/5 as well as L4/5 disc protrusion with compression of the nerve root”. The history of injury that Dr Doong recorded was “a lifting and twisting injury to his back at work on 20 April 2007”.
Mr Nguyen relied upon a report by Dr Clive Sun dated 27 November 2008. Dr Sun stated that “the clinical picture is consistent with thoracolumbar sprain with right L5 radiculopathy”. Dr Sun noted the documented disc tears and the protrusion as noted by Dr Doong. When recording Mr Nguyen’s complaints of pain in the course of examination in November 2008, complaints of constant low back pain radiating into the back of the legs as well as upper back pain and occasional neck discomfort are recorded. Dr Sun proceeded to assess whole person impairment with reference to those tables relevant to both the lumbar spine and the thoracic spine. Those findings are noted at [4] above.
A rehabilitation report prepared by Ms Jacqueline Winton, occupational therapist, dated 4 March 2008 included a notation as to Mr Nguyen’s complaints during assessment on that date. Mr Nguyen reported “ongoing back pain specifically in his buttocks region and mid/lower back”. In an earlier report which is in evidence dated 8 December 2007 Ms Winton noted that Mr Nguyen at that time reported “pain and soreness in regard to his back at various locations within the back and the side wall of his chest and also down into his buttocks”.
The Arbitrator addressed the question of injury as alleged to Mr Nguyen’s thoracic spine at T28 and T29. The evidence from the expert witnesses which I have attempted to summarise above was referred to by the Arbitrator in the course of her Statement of Reasons. Having regard to that evidence the Arbitrator concluded that Mr Nguyen had in fact received injury to his thoracic spine as alleged. The Arbitrator also referred to the evidence of Dr Ehrlich, who had been qualified by the appellant to provide a report for the purposes of this litigation.
The appellant argues on this appeal that the Arbitrator has failed to give adequate reasons concerning the finding of injury to the thoracic spine. It is the case that the Arbitrator’s reasons, delivered on the day of hearing, have been stated briefly. It was her express intention to provide the parties with an outcome to the litigation with the minimum of delay and in so doing has discharged her obligations. Whilst the Arbitrator’s reasons are stated shortly it is clear that she has given close attention to the evidence, in particular the evidence of the medical practitioners whose reports were before the Commission. The Arbitrator has noted the diagnoses and particular findings made by those who examined Mr Nguyen. It is acknowledged by the Arbitrator that the focus of those treating Mr Nguyen has been concentrated upon the injury to his lumbar spine, however concluded that the evidence “overwhelmingly supports” that there had been complaint of injury to the thoracic region from “the very early days” and that there had been ongoing complaints of pain at that level thereafter. On review I conclude that the Arbitrator’s reasons for her conclusion have been sufficiently stated in the course of her adjudication of the dispute. The Arbitrator’s conclusion concerning the occurrence of injury to the thoracic spine was one open to her on the evidence and it is one with which I respectfully agree. In so concluding I have taken into account the appellant’s submission concerning the content of Dr Nguyen’s clinical notes. As put by Mr Nguyen’s counsel at the hearing, any evaluation of that evidence should, as stated by Basten JA in Mason v Demasi [2009] NSWCA 227, be made with caution (at [2]). Dr Nguyen, who states he does not treat “WorkCover related cases”, was consulted by Mr Nguyen between 21 April 2007 and 12 May 2007 before referral by Dr Nguyen to Dr Sun. I am not persuaded that the absence of any record, made by that practitioner, of complaint other than of low back pain compels a conclusion that other symptoms were not experienced by Mr Nguyen.
The appellant also raised an argument in the course of submissions that the Arbitrator had failed to “appreciate the difference between symptomatology arising from an injury to the lumbar spine and a discrete injury to the thoracic spine”. It is argued that, since the amendments to the legislation in January 2002, there is a requirement that an injured worker establish actual injury, as opposed to symptomatology, to each body part for which compensation is sought in respect of whole person impairment.
The appellant is correct to suggest that the mere reporting of symptoms by an injured worker does not, without more, prove that a body part has been injured within the meaning of the Act. In the present case the relevant symptoms have been reported by Mr Nguyen and recorded by those treating him. Upon the basis of those reported symptoms diagnoses have been made. It is common ground among all the medical practitioners that Mr Nguyen has suffered derangement of his spine at the lumbar level. In addition to that diagnosis, there are the views of Dr Doong and Dr Sun that, as a result of the injury, Mr Nguyen has suffered a thoracolumbar sprain. That diagnosis, founded upon reported symptoms, is in my view sufficient evidence to lead to the conclusion that Mr Nguyen has suffered not only an injury to his lumbar spine but also to his thoracic spine. I reject each of the arguments advanced on behalf of the appellant challenging the Arbitrator’s finding as to injury.

CT scan

The appellant has provided supplementary submissions which were prepared following receipt by it of the transcript. Those submissions address the admission into evidence, as ordered by the Arbitrator, of a CT scan of Mr Nguyen’s thoracic spine dated 13 April 2010. It is put in submissions that the admission of that document was permitted over the appellant’s objection. An examination of the transcript demonstrates that Mr Nguyen’s counsel was tendering that document for a limited purpose (T11.50). The Arbitrator inquired of counsel appearing for the appellant as to whether there was any objection to her seeing the document. Counsel stated:
“I have no objection to you seeing it at all. But I would object to it going to an AMS. If the case got to that stage.”
An exchange then took place between the Arbitrator and counsel. The transcript does not record, at that point, any formal order being made concerning the admission of the document.
It appears that the subject of the admissibility of that document was again addressed before the Arbitrator following delivery of her Reasons for determination .The Arbitrator at that time was considering which documents were to be referred by the Registrar to the AMS. The transcript records that objection was taken to the admission of the document by counsel appearing for the appellant. That objection was based upon the undisputed fact that the document had not been served upon the appellant and that the document had been seen by the appellant for the first time on the day of hearing. It was put that the appellant would be prejudiced.
I am of the opinion that the appellant’s objections to the tender of the scan dated 13 April 2010 were well founded. The document had not been made available to the appellant prior to the day of hearing. There was at that time an issue as to injury at the thoracic level of Mr Nguyen’s spine. The appellant had had no opportunity to have the findings of that scan scrutinised by their expert witnesses. The appellant was unable to address the findings of that scan in any meaningful way and was thereby prejudiced. I conclude that the Arbitrator was in error when ordering that the document be admitted into evidence and I conclude that such order should be revoked. This has the practical consequence that the scan is not to be submitted for the consideration of the AMS when the referral is made by the Registrar. The Arbitrator’s orders numbered two and four require revocation or amendment as appears in the orders set forth hereunder.

DECISION

The Findings recorded in the Certificate of Determination dated 25 May 2010 are confirmed.
Orders 1 and 3 of the Certificate of Determination dated 25 May 2010 are confirmed.
Order 2 of the Certificate of Determination dated 25 May 2010 is revoked and the following order made in its place:
“2. Tender of a CT scan report from Southern Radiology dated 13 April 2010 is rejected.”

Order 4 of the Certificate of Determination dated 25 May 2010 is amended to delete reference to the CT scan report dated 13 April 2010. The following order is made:
“4. The documents to go to the AMS are the Application to Resolve a Dispute, the Reply, the documents attached to the Application to Admit Late Documents filed 14 May 2010.”

COSTS

The appellant is to pay Mr Nguyen’s costs of the appeal.

Kevin O’Grady
Deputy President
23 September 2010

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE