Walker v Roberts

[2009] NSWWCCPD 66

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS: Reported Decision: Walker v Roberts (2009) 8 DDCR 20
CITATION:		Walker v Roberts [2009] NSWWCCPD 66
APPELLANT:		Ian E. Walker
RESPONDENT:		John Thomas Roberts
INSURER:		CGU Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-7743/08
ARBITRATOR:	Mr C. Messenger
DATE OF ARBITRATOR’S DECISION:		27 February 2009
DATE OF APPEAL DECISION:		11 June 2009
SUBJECT MATTER OF DECISION:		Claim for lump sum compensation; relevant particulars; section 282 of the Workplace Injury Management and Workers Compensation Act 1998; circumstances in which impairments from two separate injuries may be aggregated; application of Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Lyons Barnett Kennedy
Respondent:	Adams Leyland Lawyers
ORDERS MADE ON APPEAL:		Paragraphs one, two, three and five of the Arbitrator’s determination of 27 February 2009 are revoked and the matter is remitted to the same Arbitrator for such further orders as are necessary to give effect to the reasons in this decision. Paragraph four of the Arbitrator’s determination of 27 February 2009 is confirmed.
The appellant employer is to pay one half of the respondent worker’s costs of the appeal, as assessed or agreed.

INTRODUCTION

1. This appeal concerns the provision of relevant particulars about a claim for lump sum compensation and the circumstances in which impairments from two separate work incidents can be assessed together.

BACKGROUND

1. The worker, Mr Roberts, was born in 1938 and is currently 70 years of age.  Throughout his life he has worked on the land, usually as a labourer in rural NSW.  In 2001 he became the live-in caretaker on a property known as ‘Nortongong’, about 30 kilometres north east of Gulargambone in western NSW.  Mr Roberts commenced employment with the appellant, Ian Walker, in 2006 when Mr Walker purchased the property.

1. In November 2006, Mr Roberts injured his right shoulder when he was pulling bails of hay off the back of a utility.  He did not immediately seek treatment, but after about three weeks attended on Dr David Sutherland, general practitioner, on 22 November 2006 complaining of right shoulder pain.  Whether Mr Roberts had any time off work at this stage and, if so, for how long, is unclear.  Mr Roberts remained under the care of either Dr Sutherland or another doctor at the same practice at Coonamble and continued with his usual duties.

1. On 13 April 2007, Mr Roberts was attempting to connect the terminals from a battery charger to a tractor battery when he suffered an electric shock, which caused him to throw his right arm back and to the left.  As he was unable to lift his right arm, his wife drove him to Coonamble Hospital where he was admitted for four days.  X-rays revealed a spiral fracture of the mid-shaft of the right humerus.

1. Mr Roberts submitted claims for compensation in respect of each injury and the employer’s workers compensation insurer, CGU Workers Compensation (NSW) Ltd (‘CGU’), accepted liability.

1. For medico legal purposes, Dr Burgess, orthopaedic surgeon, examined Mr Roberts for the purpose of assessing any whole person impairment arising from his injuries.  In a report dated 6 May 2008, Dr Burgess assessed Mr Roberts to have a 26 percent impairment of the right upper extremity as a result of his injuries. That assessment was made up of a 7 percent impairment of the right elbow (caused by the fracture) and a 20 percent impairment of the right shoulder.  Using Table 16.3 in the 5^th edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (‘AMA V’), the 26 percent impairment of the right upper extremity converted to a 16 percent whole person impairment.

1. By a letter dated 14 July 2008 (‘the letter of claim’), Mr Robert’s solicitor (‘Adams Leyland’) claimed lump sum compensation in the sum of $21,500.00 in respect of 16 percent whole person impairment, plus $25,000.00 compensation for pain and suffering.  That claim was served on Mr Walker and a copy forwarded to CGU.  CGU replied by letter dated 25 July 2008 in which it advised:

(a)it had not received “all the relevant particulars about the claim”;

(b)it requested that Dr Burgess provide a supplementary report “separating the two claims”;

(c)it had requested a report from Dr B. Milne at the orthopaedic clinic at Dubbo Base Hospital to ascertain if any whole person impairment was related to “this workplace injury”;

(d)the claim for section 67 entitlements (pain and suffering) could not be assessed until the two claims were separated, and

(e)until such time as the above information was received, it could not consider that all relevant particulars had been provided.

1. By letter dated 22 August 2008, Adams Leyland advised that the whole person impairment could be added together where the pathology relating to two separate injuries was the same (Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 (‘Edmed’)).  Therefore, all particulars relating to the claim had been provided and if the claim was not determined within the statutory timeframe, it would be referred to the Workers Compensation Commission.

1. CGU responded on 19 September 2008 in a document headed “Memo,” advising that Mr Roberts had received two injuries each of which resulted in different pathology.  The first injury resulted in a rotator cuff tear to the right shoulder and the second injury resulted in a fracture to the mid-shaft of the right humerus.  CGU again requested that the two injuries be assessed separately. 

1. By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 29 September 2008, Mr Roberts sought lump sum compensation in the amounts particularised in the letter of claim of 14 July 2008.  His application particularised two injuries, the first on 22 November 2006, when he was pulling bails of hay off the back of a utility and felt pain in his right shoulder, and the second on 13 April 2007, when he received an electric shock “causing further injury to R shoulder/arm”.

1. By a Reply filed on 16 October 2008, the employer relied upon CGU’s letter of 25 July 2008 and the memo of 16 September 2008.  In addition, he sought leave to dispute the following issues:

(a)that Mr Roberts failed to have his injuries and two distinct pathologies assessed separately;

(b)the pathology resulting from each incident was not identical, as required to obtain the benefit of section 322(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’);

(c)Mr Roberts’ injuries should be assessed separately and the Application had been brought prematurely and should be discontinued, and

(d)the Application had been filed without proper justification and an order for costs was sought against Mr Roberts.

1. At a teleconference on 5 November 2008, the Arbitrator noted that the issue in dispute was whether the injuries suffered in November 2006 and April 2007 were “to the same body parts. In other words the same pathology has been affected in both accidents.”  The Arbitrator gave the employer leave to issue a Direction for Production on Mr Robert’s general practitioner at Coonamble and the matter was listed for conciliation and arbitration on 4 February 2009.  The matter proceeded to arbitration on that day when the Arbitrator heard lengthy submissions from each side but no oral evidence was taken.  Due to an equipment failure, no transcript is available of the proceedings on 4 February 2009.  This error has been brought to the attention of the parties who both consent to the appeal proceeding without a transcript of the arbitration.

1. In a reserved decision delivered on 27 February 2009, the Arbitrator found that the pathology in the accidents on 22 November 2006 and 13 April 2007 were identical and he referred the matter to the Registrar for a single assessment by an Approved Medical Specialist (‘AMS’) “as to the permanent impairment in the right upper extremity” (Statement of Reasons (‘Reasons’) at [23]).  The Commission issued a Certificate of Determination on 27 February 2009 in which the following orders were made:

“The Commission determines:

1.  The Applicant suffered an injury to his right shoulder on 22 November 2006 and 13 April 2007 arising out of the course of his employment with the Respondent.

2.    (a)     I remit the matter to the Registrar for referral to an AMS

(b)The degree of permanent impairment in respect of the right upper extremity is to be referred by the Registrar to an Approved Medical Specialist for assessment in accordance with the WorkCover Guides for the Evaluation of Permanent Impairment with dates of injury of 22 November, 2006 and 13 April, 2007.

3.  The documents to be sent to the AMS are those accepted into these proceedings.

4.  That the Respondent pay the Applicant’s costs as agreed or assessed.

5. The Applicant’s costs are certified as complex pursuant to Schedule 6 Part B Table 4 Item 4 of the Workers Compensation Regulation 2003 and I allow a 15% increase for additional legal services.”

1. By an appeal filed on 24 March 2009, the employer 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 1998 Act.

1. It is not disputed 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.

ON THE PAPERS

1. 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.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. 

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are whether the worker provided relevant particulars of his claim in respect of either injury under section 282 of the 1998 Act (‘relevant particulars’) and whether the worker was entitled to regard the impairment that may have resulted from the incident of November 2006 and the impairment that may have resulted from the incident on 13 April 2007 as “impairments that result[ed] from the same injury” within the meaning of section 322(2) of the 1998 Act (‘aggregation’).

THE EVIDENCE

1. Mr Roberts’ evidence is set out in his unsigned statement prepared on 14 May 2007.  Though his evidence is largely uncontroversial and is essentially along the lines set out in paragraphs [2] to [5] above, it is unfortunate and most unsatisfactory that the only statement from him is the statement of 14 May 2007 which was taken by an insurance investigator and has not properly addressed the relevant issues. 

1. The medical evidence is also uncontroversial.  Dr Burgess recorded under “History” that Mr Roberts suffers “from significant painful dysfunction of his right arm affecting both his right shoulder and his right elbow as a legacy of two separate accidents which occurred while he was working as a caretaker”.  He correctly recorded that the first incident occurred when Mr Roberts was unloading bails of hay in 2006 and felt sudden pain in his right shoulder.  He continued at work for a period and ultimately sought treatment from Dr Sutherland on 22 November 2006.

1. Mr Roberts continued to have symptoms in his right shoulder throughout the balance of 2006 and in the first few months of 2007.  As a result, he was referred for an ultrasound on 20 March 2007, which revealed a full thickness tear of the supraspinatus tendon and a partial thickness tear of the subscapularis tendon with bony impingement and blocking.  Because of his continuing right shoulder symptoms, he attended at Dubbo Base Hospital for treatment on 24 March 2007. 

1. On 29 March 2007 Mr Roberts attended on Dr Milne at Dubbo Base Hospital.  The clinical notes for that date from the hospital record, among other things, “torn (R) rotator cuff & frozen shoulder” after pulling hay off a truck four months previously when he felt a tearing in his right shoulder.  Though he had been slowly improving, each time he tried to increase his level of activity his condition deteriorated.  On examination, Dr Milne noted wasting in the deltoid muscle, tenderness and a reduced range of shoulder movement. X-rays on that day revealed irregular density in the proximal end of the humeral shaft, but no involvement of the head of the humerus.  There was also a slight irregularity of the cortical margin on the medial aspect of the proximal end of the humerus.

1. An MRI scan of the right shoulder on 5 April 2007 revealed thinning of the anterior one third of the supraspinatus tendon, but no tear.  There was also altered signal intensity of the proximal shaft of the right humerus which was associated with a small focal defect in the anterior cortex.  These appearances required further evaluation and the radiologist felt that they could represent osteomyelitis.  A less likely possibility was that the changes were due to the effect of previous trauma or even a previous bone infarction.

1. A CT of the right shoulder and humerus on 12 April 2007 revealed appearances that were suggestive of osteomyelitis.  The lesion extended from the proximal end to the junction of the middle and proximal thirds of the humeral shaft.

1. Mr Roberts again injured his right arm when he sustained an electric shock on 13 April 2007 and was admitted to Coonamble Hospital.  X-rays revealed a fracture of the mid-shaft of the right humerus and his right arm was placed in plaster from his wrist to his shoulder.

1. Upon release from hospital, Mr Roberts was unable to return to his old job as a caretaker and he moved into alternative accommodation at Gulargambone.

1. Mr Roberts again attended at Dubbo Base Hospital on 31 May 2007.  The notes record that he fractured his right humerus on 13 April 2007, had non-operative treatment and then “developed ? osteomyelitis”.  His fracture had still not completely healed.

1. In a hand written note from Dr Callegeros, orthopaedic registrar to Dr Ruff, dated 20 September 2007, Mr Roberts’ history was summarised as follows:

(a)evidence of rotator cuff injury in November 2006;

(b)electric shock, fractured right humeral shaft 13 April 2007;

(c)Mr Roberts was systemically unwell at the end of April 2007 and x-rays and a bone scan were suggestive of osteomyelitis, and

(d)a biopsy on 1 August 2007 suggested chronic osteomyelitis.

1. Dr Callegeros added that a biopsy result “confirmed that the most probable diagnosis is [a] fracture which was complicated by osteomyelitis.”

1. Various medical certificates are in evidence from Dr Yates, general practitioner at Dr Sutherland’s practice.  Dr Yates issued separate certificates in respect of each injury.  Certificates dealing with the November 2006 injury diagnose “chronic shoulder injury” and those dealing with the April 2007 injury diagnose either “fixed flexion deformity secondary to fracture and osteomyelitis” or “osteomyelitis post fractured humerus, chronic problems with the elbow” or “fractured humerus, infected”.

1. Mr Roberts presented to Dr Burgess on 23 April 2008 with a painful loss of movement of his right shoulder.  Examination revealed he was only able to abduct his shoulder 70º, adduction was 20º, flexion 80º and extension 20º.  In respect of his elbow, he had full flexion, but a 40º fixed flexion deformity, 60º of pronation and 40º of supination.  X-rays in June and July 2007 revealed an osteolytic lesion in the shaft of the humerus and a pathological fracture in the mid third of the humerus with slight separation and angulation of the fractured fragments.

1. Under “Opinion and Prognosis”, Dr Burgess stated:

“This man suffered two injuries to his shoulder that appear to be the cause of his current condition which is one of a healing fracture of the proximal end of the humerus, which has been deemed due to apparently obscure bony changes as a pathological fracture and a level of capsulitis and right shoulder ligamentous injury.

The first injury appears to have been of a soft tissue nature and was apparently diagnosed by his doctor as being ‘torn muscles’.  His elbow dysfunction involving largely a loss of elbow movement is due, in my opinion, to the second.  Soft tissue trauma to the elbow commonly results in some permanent loss of movement.  It seems that the fracture occurred on the second occasion.

There is the possibility of the bony changes evident at the time the x-ray was taken as a legacy of the second injury may have been a legacy of the first injury.  Whatever the cause his current condition is in substantial part a legacy of his two injuries for he was functioning quite normally in his job prior to their occurring, now he is unable to do it and he is intolerant of stresses on his arm.

…

His current problems and lack of work capacity are in substantial part a legacy of the two injuries he describes and although the ultimate pathology of his proximal humerus I feel is still somewhat obscure, the cause of his current disability was in substantial part the two injuries.”

1. Applying AMA V, Dr Burgess assessed Mr Roberts’ impairment at his right elbow to be 7 percent and the impairment at his right shoulder to be 20 percent.  Applying the appropriate tables, those impairments combined to give a total impairment of 26 percent of the right upper extremity.  Applying table 16.3 at page 439 of AMA V, that impairment converted to a 16 percent whole person impairment.

THE ARBITRATOR’S REASONS

1. In a reserved decision delivered on 27 February 2009, the Arbitrator identified the issues in dispute as being those listed in the employer’s Reply (see paragraph 11 above). Notwithstanding that the Reply did not identify non compliance with section 282 of the 1998 Act as an issue in dispute, the Arbitrator appears to have allowed that issue to be argued.

1. After outlining the issues and the evidence, the Arbitrator found:

(a)Mr Roberts’ solicitors correctly obtained an opinion from a properly qualified orthopaedic surgeon as to his whole person impairment and they acted reasonably in doing so and they made the claim in accordance with that surgeon’s opinion.  In all the circumstances, he rejected the employer’s submission that the claim had not been properly made;

(b)the accidents on 22 November 2006 and 13 April 2007 produced similar symptoms in the right shoulder.  Though Dr Burgess thought that the pathology in the proximal humerus was “somewhat obscure”, the cause of Mr Roberts’ disability was in substantial part attributable to the two injuries (Reasons, at [18]);

(c)there is no medical evidence other than the opinion of Dr Burgess on which to determine the pathology of the two incidents (Reasons, at [19]);

(d)Dr Callegeros’ report of 20 September 2007 is only a “very brief summary of events” and cannot have a critical bearing on whether there is related pathology.  Extracts from the treating clinical notes provide a record of the treatment and prognosis for each incident but do not provide a comparison of the pathologies arising from each incident (Reasons, at [20]);

(e)the report from Dr Callegeros did not outweigh the clear statement by Dr Burgess that Mr Roberts’ current problems are “in substantial part a legacy of the two injuries” (Reasons, at [20]);

(f)Mr Roberts appears to have suffered “soft tissue injuries and trauma to the humerus in both accidents.  There is insufficient evidence to enable a determination of any relevant difference in pathology between the two incidents” (Reasons, at [22]);

(g)as identified in Central West Group Apprentices Limited v Barrett [2008] NSWWCCPD 137, (‘Barrett’) the evidence does not have to precisely identify the injury in each incident but merely requires the Commission to be satisfied that, on the balance of probabilities, the injury in each incident was “the same” (Reasons, at [22]), and

(h)the injuries suffered by Mr Roberts on 22 November 2006 and 13 April 2007 were “the same” and he was entitled to a finding that the pathology in the two incidents is identical and the matter is referred to the Registrar for a single assessment by an AMS as to the permanent impairment of the right upper extremity (Reasons, at [23]).

SUBMISSIONS, DISCUSSION AND FINDINGS

Relevant Particulars

1. The Arbitrator’s Reasons do not disclose if he granted leave for this issue to be disputed. However, as he expressly referred to the employer’s submission that Mr Roberts had not complied with section 282 of the 1998 Act (Reasons, at [12]), and as Mr Roberts has not objected to this issue being argued on appeal, I assume that leave was granted. Whilst the employer’s submissions are couched in terms of whether the claim for lump sum compensation was “duly made”, that expression is not used in either the legislation or the WorkCover Guidelines for Claiming Compensation Benefits (‘the Guidelines’) and should not be used. The employer argues “the applicant at no time duly made a claim in respect of either injury”. That submission does not address the terms of the legislation and is unhelpful.

1. The context in which claims for lump sum compensation must be particularised was succinctly summarised by Acting Deputy President Snell in Bond Industries Ltd v Borg [2007] NSWWCCPD 80 at [67] and [68]:

“67. Claims pursuant to both sections 66 and 67 fall within the definition of ‘lump sum compensation’ found in section 4 of the 1998 Act. Section 281 of the 1998 Act deals with such claims. It gives an employer (in the absence of agreement on quantum or determination of quantum by a MAC) two months from the claimant providing ‘all relevant particulars about the claim’, in which to either accept liability and make a reasonable offer, or dispute liability. The ‘relevant particulars’ are governed by section 282, which sets out matters that must be included, together with ‘such other matters as the Workcover guidelines may require’ (section 282(1)(g)). The Workcover guidelines make provision at Part 2 rule 6 regarding the information required to claim compensation for both permanent impairment and pain and suffering.

68. Commencement of proceedings in the Commission for recovery of lump sum compensation is then restricted by section 289(3). The dispute cannot be referred to the Commission unless liability has been wholly denied, or one month has passed after an offer of settlement was made to the claimant as and when required by the Act, or the employer failed to determine the claim as and when required by the Act. Thus, if a worker fails to supply ‘all relevant particulars’ in compliance with section 282, the consequence is that the employer is not obliged to determine liability pursuant to section 281. This, in turn, may prevent a worker commencing proceedings in the Commission, due to the operation of section 289(3).”

1. It is argued that the letter of claim of 14 July 2008 did not identify the impairment said to have resulted from the injury in 2006, or the impairment said to have resulted from the 2007 injury.  Accordingly, so it is submitted, as the worker failed to supply “all relevant particulars,” the employer was not obliged to determine liability under section 281.

1. I do not accept that submission.  The purpose of sections 281 and 282 is to enable claims for lump sum compensation to be resolved expeditiously, fairly and without unnecessary expense.  To that end workers must provide “relevant particulars” about the claim.  Those particulars must identify the injury/s and the impairment/s alleged to have resulted from the injury/s.  That was done in this case.

1. Section 282 of the 1998 Act provides:

“282 Relevant particulars about a claim

(1) The ‘relevant particulars about a claim’ are full details of the following, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement on the claim:

(a) the injury received by the claimant,
(b) all impairments arising from the injury,
(c) any previous injury, or any pre-existing condition or abnormality, to which any proportion of an impairment is or may be due (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act),
(d) in the case of a claim for work injury damages, details of the economic losses that are being claimed as damages and details of the alleged negligence or other tort of the employer,
(e) information relevant to a determination as to whether or not the degree of permanent impairment resulting from the injury will change,
(f) in addition, in the case of a claim for lump sum compensation, details of all previous employment to the nature of which the injury is or may be due,
(g) such other matters as the WorkCover Guidelines may require.

(2) If the employer requires the claimant to submit himself or herself for examination by a medical practitioner provided and paid for by the employer, the claimant is not considered to have provided all relevant particulars about the claim until the worker has complied with that requirement.

(3) The insurer is not entitled to delay the determination of a claim under this Division on the ground that any particulars about the claim are insufficient unless the insurer requested further relevant particulars within 2 weeks after the claimant provided particulars.

(4) In this section, ‘injury’ is not limited by the meaning given by section 4.”

1. So far as is relevant to the present claim, the Guidelines applicable at the time Mr Roberts made his claim provided that the claim must include particulars of the following:

“2.8 the injury received, as identified in claim for workers compensation. If no
claim for compensation has been made, it will be necessary to
separately make such a claim

2.9 all impairments arising from the injury

2.10 whether the condition has reached maximum medical improvement

2.11 the amount of whole person impairment assessed in accordance with
the WorkCover Guides for the Evaluation of Whole Person Impairment

2.12 a medical report completed in accordance with the WorkCover Guides
for the Evaluation of Whole Person Impairment by a medical specialist
with qualifications and training relevant to the body system being
assessed who has been trained in the WorkCover Guides.
If there is more than one impairment that requires assessment by
different medical specialists, one specialist must be nominated as lead
assessor and determine the final amount of whole person impairment”

1. Taking each point in turn, I note:

(a)it is not disputed that particulars about each injury were provided.  CGU is therefore not prejudiced as to the nature or circumstances of the injury;

(b)full details of the impairment/s arising from each injury were provided in Dr Burgess’ report, which was attached to the letter of claim.  Dr Burgess did not merely give a global figure after combining the losses resulting from each injury.  He clearly noted the separate injuries and assessed Mr Roberts to have a 7% impairment of his upper extremity as a result of his elbow dysfunction and a 20% impairment of his upper extremity as a result of his shoulder condition.  The cause of each condition is discussed further at [50] and [51] below;

(c)Dr Burgess stated that the condition/s had reached maximum medical impairment, and

(d)Dr Burgess is a medical specialist with qualifications and training in the relevant body system being assessed, and he is trained in the WorkCover Guides.  His report was completed in accordance with the WorkCover Guides for the Evaluation of Whole Person Impairment.

1. In these circumstances, Dr Burgess’ report provided all “relevant” particulars about the claim and I do not accept the assertion to the contrary. 

1. The only thing Dr Burgess did not do was to convert the percentages he assessed (20% for the shoulder and 7% for the elbow) into whole person impairment assessments.  That conversion requires no medical expertise but is provided in Table 16.3 on page 439 of AMA V.  The shoulder impairment converts to a 12% whole person impairment and the elbow impairment to a 4% whole person impairment. 

1. Mr Roberts’ solicitor claimed compensation for 16% whole person impairment (relying on Edmed) on the basis that the impairments to the shoulder and elbow could be aggregated. For reasons set out below, that was incorrect. But it did not mean that Mr Roberts had not provided “relevant” particulars within the terms of the Guidelines and section 282. Dr Burgess’ report provided full particulars of the injuries received, the impairments said to have resulted from them, and that the conditions had reached maximum medical improvement. Thus, relevant particulars to enable the insurer to determine whether to accept or dispute liability were provided. It is of no consequence that the letter of claim did not separately claim 12% whole person impairment as a result of the shoulder impairment and 4% whole person impairment as a result of the elbow impairment. CGU had all “relevant” particulars to enable a decision to be made. It decided to dispute the claim for 16% whole person impairment on the basis that the principles in Edmed do not apply.  As a result, a dispute arose about a claim for lump sum compensation (section 289(3) of the 1998 Act) and the matter was properly referred to the Commission for determination.

Aggregation

1. The circumstances in which the impairments from two injurious incidents can be added together were considered in Edmed and Barrett.  In Edmed, it was held (at [27]) that impairments resulting from the “same injury” (the same pathology) are to be assessed together regardless of whether they arise from the same incident or separate incidents.

1. The Arbitrator’s conclusion that Mr Roberts suffered soft tissue injuries and trauma to his humerus in both accidents is incorrect.  Dr Burgess merely said that there was a “possibility” that the fracture was a legacy of the first accident.  There is no other evidence to support this hypothesis and I do not accept it.  The evidence from Dr Callegeros is clear that the 2007 incident caused the fracture.  The fracture therefore resulted from a separate incident and is a separate and distinct injury (pathology) from the shoulder injury (pathology).  The subsequent radiological investigations suggesting the presence of abnormalities in the humerus (before the 2007 injury) are not persuasive that those abnormalities, or the fracture on 13 April 2007, resulted from the 2006 injury.  Indeed, the radiologist who conducted the 5 April 2007 MRI described “previous trauma” as a “less likely possibility” when considering the cause of the changes noted.

1. Dr Burgess’ additional comment, that Mr Roberts’ “current condition is in substantial part a legacy of his two injuries” is undoubtedly correct, but, subject to what I say below about the shoulder condition, it does not mean that the injury or pathology sustained in each incident is the same.  The 2006 injury resulted in a rotator cuff injury to the right shoulder.  The 2007 injury resulted in a fracture of the mid-shaft of the right humerus.  Those two injuries are separate and distinct.  The rotator cuff injury has caused an impairment of the shoulder.  The fracture has caused an impairment of the elbow.  Each injury, or pathology resulting from each injury, must be assessed and compensated separately. 

1. Dr Burgess’ reference to Mr Roberts suffering “two injuries to his shoulder” is not fully explained in the evidence.  It does, however, raise the possibility that, because of the lengthy period of immobilisation of the right arm after the fracture, the 2007 injury resulted in an aggravation of the 2006 shoulder injury.  Whether that has happened is not properly addressed in the evidence, but it makes no difference to the end result.  If Mr Roberts’ shoulder impairment has resulted from both incidents, that impairment has resulted from the “same injury” (the same pathology) under section 322(2), that is, the rotator cuff pathology, and must be assessed together as one impairment. That is what Dr Burgess did in assessing a 20% impairment of the shoulder.

OTHER MATTERS

1. In a case where the only issue is the quantification of the worker’s clear entitlement to lump sum compensation, the employer should not have sought an order for costs against the worker.  Such costs orders are restricted to the circumstances set out in section 341(4) of the 1998 Act.  Even if the employer had succeeded on the “relevant particulars” issue, this was not a case in which costs would have been ordered against the worker.  A failure to comply with a procedural requirement will rarely, if ever, justify an order for costs against a worker.  It is appropriate for insurers, and their solicitors, to keep in mind the principles discussed by the Court of Appeal in Tan v National Australia Bank Ltd [2008] NSWCA 198 where Basten JA (Bell JA agreeing) observed (at [42]) that the legislative objectives of the Act will not be promoted by a narrow reading of a provision which allows for the recovery of compensation in circumstances where procedural requirements have not been followed.

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 that the correct position is that Mr Roberts has provided relevant particulars about his claim. However, save for the right shoulder impairment, the impairments resulting from his two injuries are to be assessed separately.

1. It follows that though Mr Roberts has provided relevant particulars of his claim for lump sum compensation, his current Application will have to be amended to accord with Dr Burgess’ evidence before it can be referred to the Registrar for referral to an AMS.  The amendment will be to claim 4% whole person impairment in respect of the condition of the right elbow as a result of the 2007 injury and 12% whole person impairment in respect of the condition of his right shoulder as a result of the 2006 injury, or, if appropriate, as a result of both injuries.  The assessment of 12% whole person impairment will entitle Mr Roberts to claim compensation for pain and suffering, but only in respect of the shoulder injury. 

1. Given that there is no dispute as to diagnosis, or that Mr Roberts has an impairment as a result of the condition of his elbow and an impairment as a result of the condition of his shoulder, and given that the assessment of whole person impairment must be determined by an AMS, it is difficult to see what is to be gained by CGU further delaying the matter while it obtains a medical report from an expert of its choice.  Nevertheless, if CGU feels the need to obtain a medical assessment before the matter is referred to an AMS, it is entitled to be given the opportunity to do so.  Subject to that and subject to the Application being amended to accord with Dr Burgess’ assessments, the matter should be referred to an AMS as soon as possible.

1. This matter is a simple claim for lump sum compensation.  There was no justification for the Arbitrator certifying it as complex and that order has been revoked. 

DECISION

1. Paragraphs one, two, three and five of the Arbitrator’s determination of 27 February 2009 are revoked and the matter is remitted to the same Arbitrator for such further orders as are necessary to give effect to the reasons in this decision.

1. Paragraph four of the Arbitrator’s determination of 27 February 2009 is confirmed.

COSTS

1. As the employer has partially succeeded with its appeal, it is appropriate that it pay one half of the worker’s costs of the appeal as agreed or assessed and that is the order I make.

Bill Roche
Deputy President

11 June 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