Warwar v Speedy Courier (Australia) Pty Ltd
[2010] NSWWCCPD 92
•25 August 2010
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Warwar v Speedy Courier (Australia) Pty Ltd [2010] NSWWCCPD 92 | ||||
| APPELLANT: | Hayssam Warwar | ||||
| RESPONDENT: | Speedy Courier (Australia) Pty Ltd | ||||
| INSURER: | QBE Workers Compensation (NSW) Limited | ||||
| FILE NUMBER: | A1-1448/10 | ||||
| ARBITRATOR: | Mr R O’Moore | ||||
| DATE OF ARBITRATOR’S DECISION: | 28 April 2010 | ||||
| DATE OF APPEAL DECISION: | 25 August 2010 | ||||
| SUBJECT MATTER OF DECISION: | Lump sum compensation; two injuries; circumstances in which the effects of multiple injuries can be aggregated to meet the threshold for compensation for pain and suffering in section 67 of the Workers Compensation Act 1987; section 322 of the Workplace Injury Management and Workers Compensation Act 1998; consideration of the principles in Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; construction of complying agreement under section 66A of the Workers Compensation Act 1987; principle of objectivity; relevance of surrounding circumstances; application of principles in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltdand others [2004] HCA 52; 219 CLR 165 | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Michael E Bradstreet | |||
| Respondent: | Moray & Agnew | ||||
| ORDERS MADE ON APPEAL: | For the reasons given in this decision, the Arbitrator’s determination of 28 April 2010 is confirmed. Each party is to pay his or its own costs of the appeal. | ||||
INTRODUCTION
This appeal raises the question of whether a worker can combine impairments from two separate incidents to reach the 10 per cent threshold to recover compensation for pain and suffering in section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).
BACKGROUND
The appellant worker, Mr Warwar, started work with the respondent employer, Speedy Courier (Australia) Pty Ltd, as a trolley collector at a Bankstown shopping centre in early 2007. On 22 February 2007, he injured his lower back whilst closing a heavy door on a trailer. He experienced immediate severe low back pain and was taken to Bankstown Hospital. He was released after a short period of observation. Mr Warwar has not returned to work since his injury.
As part of his treatment for his back injury, Mr Warwar attended on an osteopath at Punchbowl. Whilst driving home after having received osteopathic treatment for his back on 18 August 2008, Mr Warwar was involved in a motor vehicle accident in which he injured his neck and experienced increased symptoms in his lower back.
On 19 March 2009, Dr Peter Giblin, orthopaedic surgeon, assessed Mr Warwar to have a five per cent whole person impairment (after allowing a 1/10th deduction for a pre-existing condition) as a result of the injury to his lumbar spine on 22 February 2007, and a six per cent whole person impairment as a result of the injury to his cervical spine and lumbar spine on 18 August 2008 (wrongly referred to as 18 August 2007 in the report). The assessment in respect of the August 2008 injury was made up of a five per cent whole person impairment as a result of the cervical spine injury and, after adjustment for a pre-existing condition, an additional one per cent as a result of the lumbar spine condition. The total whole person impairment as a result of both incidents was 11 per cent.
On 8 April 2009, Mr Warwar claimed compensation for an 11 per cent whole person impairment as a result of both injuries, together with $25,000 for pain and suffering.
On 10 June 2009, the respondent employer’s insurer, QBE Workers Compensation (NSW) Ltd (‘QBE’), offered to settle the claim for lump sum compensation in the sum of $15,882. That offer was based on Dr Giblin’s assessment and made up as follows:
“• section 66 based on 5% whole person impairment (less 1/10th deduction noted above) in the amount of $7,219 in relation to the incident on 22 February 2007
• section 66 based on 6% whole person impairment in the amount of $8,663, in relation to the incident on 18 August 2008.”
The letter stated that QBE was unable to make an offer of compensation for pain and suffering because the claim did not meet the threshold for that compensation.
Mr Warwar accepted the above offer, but disputed that he had no entitlement to compensation for pain and suffering. Mr Warwar signed a “complying agreement” under section 66A of the 1987 Act on 29 June 2009. That agreement referred to a date of injury of 22 February 2007 and a degree of impairment of 11 per cent whole person impairment, but made no provision for the payment of compensation for pain and suffering.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 24 February 2010, Mr Warwar claimed compensation for pain and suffering in the sum of $25,000. The Application pleaded both the injury on 22 February 2007 and the injury on 18 August 2008. Under “Injury Description”, the following appears in Part 4 of the Application:
“1. Injury to back.
2. Injury to right leg.
3. Injury to neck.
4. Chronic Adjustment Disorder with anxiety and depressed mood.”
Under “Describe How Injury Occurred”, the following appears in the Application:
“1. Back – closing heavy door of trailer on 18/4/2007 [sic].
2. Right leg – pain radiating from back.
3. Neck – motor vehicle accident on 18/8/2008.
4. Back and right leg aggravated by motor vehicle accident on 18/8/2008.
5. Psychiatric injury consequent upon injuries suffered in both accidents.”
The parties agree that the only issue in dispute is whether the appellant worker has any entitlement to compensation for pain and suffering, and whether the relevant injuries can be aggregated to satisfy the 10 per cent threshold in section 67 of the 1987 Act.
The Commission listed the matter for conciliation and arbitration on 24 April 2010, when the parties made lengthy oral submissions. In a reserved decision delivered on 28 April 2010, the Arbitrator determined that Mr Warwar’s injuries could not be aggregated and that he failed to meet the section 67 threshold. The Commission issued a Certificate of Determination in the following terms:
“1.Award Respondent in relation to the Applicant’s claim for pain and suffering compensation under section 67 of the Act.
2.No order as to costs.”
In an appeal filed on 24 May 2010, Mr Warwar seeks leave to challenge the above determination.
LEAVE TO APPEAL
Monetary threshold
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’).
It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
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.
ISSUE IN DISPUTE
The issue in dispute is whether the Arbitrator wrongly applied the law in ruling that the injuries resulting from the two incidents could not be combined to arrive at a single whole person impairment percentage.
THE EVIDENCE
Mr Warwar’s evidence is set out in his statement of 22 October 2009 and is largely uncontroversial. He said that he injured his lower back while closing a heavy door on a trailer in the course of his employment on 22 February 2007. He came under the care of his general practitioner, Dr Selim, who referred him to Dr Manohar.
Dr Manohar first saw the worker on 16 April 2007. His presenting problem was low back pain extending down both legs, but more severe in the right leg. Though Mr Warwar later complained of pain in his left wrist, his consistent complaints to Dr Manohar throughout 2007 were of pain in his low back and right leg. Investigations revealed a disc protrusion at L4/5.
The worker completed a claim form on 18 April 2007 in which he described his injury as “back, right leg”.
Dr Cordato reported to Dr Selim on 29 November 2007 that Mr Warwar had symptoms of right L5 radiculopathy supported by MRI imaging.
On 18 August 2008, Mr Warwar was involved in a motor vehicle accident whilst driving home after having received osteopathic treatment for his low back injury. The ambulance report records that Mr Warwar complained of “(R) neck/shoulder/back pain” after being involved in a collision when another vehicle pulled in front of him and struck the right side of his car. His specific complaints were of pain to the right shoulder, right neck, right thoracic back, right chest, right pelvis, right leg and right arm. He also complained of dizziness.
Liverpool Hospital discharge summary records that “on secondary survey [Mr Warwar] had cervical and thoracolumbar tenderness”.
At the request of his solicitors, Mr Warwar saw Dr Giblin for medicolegal purposes on 19 August 2008. In his report of 21 August 2008, Dr Giblin recorded that Mr Warwar experienced severe pain in his low back, right leg and left wrist whilst lifting a heavy gate at work on 22 February 2007. He also took a history that, on 18 August 2008 (the day before his examination), Mr Warwar had been involved in a motor vehicle accident. Mr Warwar complained of headaches, back and neck pain, and discomfort over all of his body.
Dr Giblin noted that the radiological investigations in 2007 confirmed a small disc protrusion at L4/5. He diagnosed a soft tissue injury to the worker’s back, with referred symptoms to the right leg and a soft tissue injury to his left wrist “as a result of his subject accident”. In view of the recent car accident, Mr Warwar’s prognosis was unclear, and Dr Giblin recommended a review in six months.
On 9 October 2008, Mr Warwar completed a claim form in which he described his “injury/condition” as “neck, head injury, aggravation of back injury, aggravation of leg injury”.
Dr Giblin conducted that review on 11 February 2009 and reported on 12 February 2009. In order of severity, Mr Warwar’s symptoms were:
“1. low back pain;
2. bilateral leg pain, the right worse than the left;
3. neck pain;
4. left wrist pain.”
Dr Giblin confirmed that a cervical CT scan dated 14 November 2008 showed no substantive change other than some very minor spondylosis.
After making allowance for a pre-existing back condition, Dr Giblin assessed the worker to have a five per cent whole person impairment as a result of the injury on 22 February 2007.
In respect of the motor vehicle accident on 18 August 2008, Dr Giblin diagnosed a soft tissue injury to the neck and assessed Mr Warwar to have a five per cent whole person impairment. In relation to the low back injury (in the car accident), Dr Giblin assessed a five per cent whole person impairment, but deducted four-fifths because of the previous history, leaving an additional one per cent impairment.
Combining Dr Giblin’s assessments gave a total of 11 per cent whole person impairment as a result of injuries received on 22 February 2007 and on 18 August 2008.
On 8 April 2009, Mr Warwar submitted a claim for compensation for permanent impairment in which he claimed compensation in respect of an 11 per cent whole person impairment and $25,000 for pain and suffering. The form identified two injuries: “22/02/02 & 18/8/07” [sic 18 August 2008]. It listed the “body system affected by the injury” as “lumbar spine, left upper extremity, cervical spine”.
SUBMISSIONS, DISCUSSION AND FINDINGS
Mr Warwar presents his case on three alternative bases. First, the section 66A complying agreement is binding on the parties as to the amount of compensation he is entitled to receive for permanent impairment (‘section 66A’). Second, under section 322 of the 1998 Act, Dr Giblin’s assessments can be aggregated to give one whole person impairment of 11 per cent (‘section 322’). Last, as Mr Warwar was on a journey to his home under section 10(3)(c) of the 1987 Act after having received necessary medical treatment for his first injury, the injuries received in the motor vehicle accident have resulted from the injury on 22 February 2007 (‘results from’).
Section 66A
Section 66A of the 1987 provides:
“66A Agreements for compensation
(1) In this section, complying agreement means a written agreement:
(a) under which a worker who has received an injury, and an employer or insurer, agree as to either or both of the following:
(i)the degree of permanent impairment that has resulted from the injury,
(ii) the amount of pain and suffering compensation to which the worker is entitled in respect of the injury, and
(b) in which there is a provision in which the employer or insurer certifies that it is satisfied that the worker has obtained independent legal advice before entering into the agreement.
(2) If a worker enters into a complying agreement in relation to an injury:
(a) the permanent impairment compensation to which the worker is entitled in respect of the injury is the compensation payable in respect of the degree of impairment so agreed, and
(b) the pain and suffering compensation to which the worker is entitled in respect of the injury is the amount so agreed.
(3) The Commission may award compensation additional to the compensation payable under subsection (2) by virtue of a complying agreement if it is established that:
(a) the agreed degree of permanent impairment or the amount of pain and suffering compensation is manifestly too low, or
(b) the worker has been induced to enter into the agreement as a result of fraud or misrepresentation, or
(c) since the agreement was entered into, there has been an increase in the degree of permanent impairment beyond that so agreed.
(4) Complying agreements, and the payments made under them, are to be recorded in accordance with the WorkCover Guidelines.
(5) Subsection (2) has effect despite section 234 (No contracting out) of the 1998 Act.
(6) Nothing in this section prevents a complying agreement from containing provision as to the payment of costs.”
It was submitted on behalf of Mr Warwar that the appellant worker and the respondent employer agreed in the section 66A complying agreement that the worker has suffered an 11 per cent whole person impairment as a result of the injury on 22 February 2007 and that he is therefore entitled to compensation for pain and suffering. This submission is based on the fact that the complying agreement only referred to the first injury under “Agreement Details” and made no mention of the second injury.
It was submitted that the agreement is binding on the parties and, unless and until it is set aside, the Commission must “give effect to its terms”. Pursuant to those terms, so it was argued, the parties have “declared that the appellant [worker] has an 11% whole person impairment resulting from one injury being 22 February 2007”. Accordingly, Mr Warwar has satisfied the section 67 threshold and is entitled to compensation for pain and suffering.
It was also submitted that, on its face, the agreement was drawn by QBE and any ambiguity should be resolved against QBE (Batterham v Mackeig [2010] NSWCA 86 at [36]).
I do not accept the worker’s submissions on this point.
As there is no suggestion that any of the exceptions in section 66A(3) apply in the present case, the complying agreement is a written agreement that is to be interpreted according to the usual principles of contract law. It is an exception to section 234 of the 1998 Act, which prevents parties from contracting out of the terms of the 1987 Act and the 1998 Act.
The High Court considered the principles relevant to the construction of a contract in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltdand others [2004] HCA 52; 219 CLR 165, where it held (at [40]):
“This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.” (emphasis added)
The fundamental principle is what reasonable parties would take a clause to mean at the time of making the contract, taking into account the text and structure of the written agreement and its background (Synergy Protection Agency Pty Ltd v North Sydney Leagues Club Limited [2009] NSWCA 140). It is not necessary to identify ambiguity as a pre-condition before contextual and background material can be considered in interpreting the contract (Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 (‘Masterton Homes’)). The construction of a written contract takes into account the text of the document and the context of the surrounding circumstances known to the parties (Franklins Pty Ltd v Metcash Pty Ltd [2009] NSWCA 407). The surrounding circumstances attributed to a reasonable person in the situation of the contracting parties is to be understood by reference to what the parties knew in the context of their mutual dealings (QBE Insurance Australia v Vasic [2010] NSWCA 166).
Essentially, what is required is that, by reference to the surrounding circumstances known to the parties, and the purpose and object of the transaction, I must determine what reasonable parties would objectively understand the complying agreement to mean.
The surrounding circumstances known to the parties in the present matter include Dr Giblin’s evidence of whole person impairment in his report of 19 March 2009 and QBE’s letter of 10 June 2009. On reading those documents, it is obvious that, on an objective view, the complying agreement compensated Mr Warwar for separate injuries that resulted from separate and distinct incidents. It was never the purpose or intention of the complying agreement to admit that Mr Warwar had received an injury that met the 10 per cent threshold in section 67. If it had, QBE would have made an offer to settle that part of the claim. It expressly declined to make such an offer because the claim had not met “the threshold for section 67”.
The letter of 10 June 2009 makes it clear beyond doubt that QBE approached the claim on the basis that it was not combining the separate impairments and was not conceding an entitlement to compensation under section 67. The letter referred to Dr Giblin’s report of 19 March 2009, in which he set out his assessments in a manner that complied with the WorkCover Guidelines for the Evaluation of Permanent Impairment. The letter added:
“Dr Giblin has determined that as a result of the injury to your lower back which occurred on 22 February 2007 and upper back which occurred on 18/08/07 you have sustained a permanent impairment. This impairment is expressed as a percentage of whole person impairment. Dr Giblin determined that you have sustained a 5% whole person impairment less a deduction of 1/10th for a pre-existing condition or abnormality as a result of the incident on 22 February 2007 and a 6% whole person impairment as a result of the incident on 18 August 2008.”
Whilst the letter wrongly referred to the “upper back”, it is clear that, consistent with Dr Giblin’s assessments, QBE accepted that Mr Warwar had received two separate and distinct injuries: one to his lower back on 22 February 2007 that resulted in a five per cent whole person impairment, and one to his neck and back on 18 August 2008 that resulted in a six per cent whole person impairment. That was the basis of the offer made on 10 June 2009. The worker accepted that offer, subject to disputing his entitlement to claim compensation for pain and suffering.
When the complying agreement is read in the light of the surrounding circumstances, it is obvious that it relates to Mr Warwar’s entitlement to compensation under section 66 for his two separate and discrete injuries, the first to his low back in 2007, and the second to his neck and low back in 2008. That is confirmed on page 1 of the agreement, which noted that Dr Giblin’s report of 19 March 2009 had been relied upon “to assess the degree of permanent impairment”. That report clearly identified and assessed separate and distinct impairments resulting from the two separate work injuries.
To the extent that the section 66A agreement may be considered to be analogous to a consent award filed in the Commission (which I doubt), that makes no difference to my conclusion. In Nokia Corporation v Liu [2009] FCAFC 138, the Full Court of the Federal Court applied the principles of construction for contracts set out in Masterton Homes to consent awards filed in court. Thus, the same analysis of the surrounding circumstances applies and leads to the same conclusion.
Section 322
Section 322 of the 1998 Act provides:
“322 Assessment of impairment
(1)The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with WorkCover Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2)Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3)Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
…”
It was submitted on behalf of Mr Warwar that, even if the assessments of five per cent and six per cent were seen as being attributable to separate incidents, those assessments could be aggregated to give one whole person assessment of 11 per cent. Mr Warwar relied upon Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 (‘Edmed’).
In Edmed, I considered the definition of “injury” in section 4 of the 1987 Act. That definition provides:
“In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes:
(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(c) ...”
I added (at [26] and [27]):
“26.This definition is unhelpful in determining the issue before me. In Lyons, Judge Neilson held that ‘injury’ refers to ‘both the [injurious] event and the pathology arising from it’. I accept that definition as being appropriate for many purposes under the 1987 Act and the 1998 Act. That the term ‘injury’ can have two different meanings is acknowledged in section 322(3) of the 1998 Act where reference is made to ‘Impairments that result from more than one injury arising out of the same incident...’ (emphasis added). This reference to ‘injury’ can only mean the ‘pathology’ that has resulted from the relevant work ‘incident’ or injurious event. For example, if a worker falls and suffers a broken leg and separate and distinct nerve damage in the arm, he or she has suffered more than one ‘injury’ (an injured leg and an injured arm) within the terms of section 322(3) resulting from the one ‘incident’. In other words, he or she has suffered more than one pathology (‘injury’) as a result of the one incident or injurious event. Those ‘injuries’ are to be assessed together. This interpretation is consistent with section 65(2) of the 1987 Act and is uncontroversial.
27. The difficulty arises when a worker suffers one pathology (‘injury’) as a result of several independent ‘incidents’ or injurious events. This situation is partly addressed in section 322(2), which provides that ‘Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker’ (emphasis added). The reference to ‘the same injury’ in section 322(2) cannot be a reference to ‘the same incident’ because that situation is dealt with in section 322(3). The expression ‘the same injury’ is not defined but it follows that if ‘injury’ in section 322(3) means ‘pathology’ (as it must), then, for the section to be logically consistent, it must mean the same in section 322(2). If ‘injury’ in section 322(2) means ‘pathology’ then, for section 322(2) to be consistent with section 322(3), 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.”
The principles discussed in Edmed have been applied in Kolak v Hunani Pty Ltd [2008] NSWWCCPD 60, New South Wales Fire Brigades v Turton [2008] NSWWCCPD 66, Central West Group Apprentices Ltd v Barrett [2008] NSWWCCPD 137, Filippou v Northern Sydney Central Coast Area Health Service (Manly Hospital) [2009] NSWWCCPD 35, and Cemco (Australia) Pty Ltd t/as Carrall’s Engineering & Mining v Carrall [2009] NSWWCCPD 76.
Applying the principles discussed in the above cases, the question is whether Mr Warwar’s impairments have resulted from “the same injury” (same pathology). If they have, they are to be “assessed together” to assess his degree of impairment.
In support of his submission that he received the “same injury” in each incident, it has been submitted on behalf of Mr Warwar that:
(a) the hospital notes reveal that Mr Warwar complained of right back pain
following the car accident and of increased pain with movement of his extremities;
(b) spinal x-rays were taken after the motor vehicle accident;
(c)the ambulance records reveal that Mr Warwar complained of neck and back pain at the scene of the motor vehicle accident;
(d)the CT scan prior to the motor vehicle accident revealed a shallow central disc bulge at L4/5 with moderate thecal impingement and some possible compression of the L5 nerve root. An MRI scan taken after the motor vehicle accident showed “largely similar pathology”;
(e)Dr Metry gave evidence that the motor vehicle accident “aggravated [Mr Warwar’s] pre-existing condition of depression and anxiety and that has exacerbated symptoms of depression”;
(f)in his claim form submitted in respect of the motor vehicle accident, Mr Warwar complained of, among other things, “aggravation of back injury, aggravation of leg injury”;
(g)the permanent impairment claim form claimed compensation for an 11 per cent whole person impairment, not two separate impairments of five per cent and six per cent;
(h)in his statement dated 22 October 2009, Mr Warwar said his back pain had been worse following the motor vehicle accident;
(i)in his report of 12 February 2009, Dr Giblin treated and assessed both injuries together. He did not distinguish between signs and symptoms referable to one injury over the other. This was consistent with the view that the same pathology in respect of the back was involved and “was so treated by Dr Giblin” and led to his assessments. Those assessments gave a combined total of 11 per cent, and
(j)if the above arguments are accepted, then the appropriate date of injury for the purposes of calculating the worker’s section 66/67 entitlements is 18 August 2008.
As far as they relate to the neck injury, I do not accept the above submissions.
Mr Warwar injured his lower back on 22 February 2007. Though he again injured his lower back in the motor vehicle accident in 2008, the undisputed evidence is that he suffered only a one per cent impairment as a result of that further injury. Based on the complaint of symptoms and the radiological investigations, the low back injury (pathology) in the motor vehicle accident (aggravation of an L4/5 disc protrusion caused in the first incident) was the same as the low back injury caused by the 2007 incident. It is therefore appropriate to aggregate the one per cent impairment from the second back injury with the five per cent impairment from the first back injury. However, that does not reach the 10 per cent threshold in section 67.
Mr Warwar’s main injury in the motor vehicle accident was to his neck. There is no basis for treating the neck injury from the car accident as the “same injury” as the low back injury received in the lifting incident in 2007. The neck injury was a separate and distinct injury to a different part of the body involving separate and distinct pathology compared to the 2007 back injury. A neck injury is plainly not “the same” injury as a low back injury and the impairment from the neck injury in the motor vehicle accident cannot be added to the impairment from the back injury in the 2007 incident for the purpose of satisfying the section 67 threshold.
Dr Giblin did not “treat and assess” both injuries together. He was not the treating doctor. He gave separate and distinct assessments for each part. Given that different injuries were involved, that was appropriate. It follows that the impairment from the neck injury in the motor vehicle accident cannot be added to the impairment from the 2007 back injury to satisfy the section 67 threshold. It was not the “same injury” (pathology) as the injury received in 2007.
Results from
It has been submitted that, as Mr Warwar was on a journey in respect of necessary medical treatment at the time of the motor vehicle accident, the accident resulted from the 2007 injury, and the consequences of the motor vehicle accident should be treated as “part of the effects of the injury on 2 February 2007”. It is argued that the issue raises a simple factual question as to whether the second injury resulted from the earlier injury (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (‘Kooragang’).
The argument is that Mr Warwar’s need to travel to receive necessary medical treatment as a result of the first injury exposed him to a risk of injury, namely the negligence of another motor vehicle driver, a risk to which he would not have been exposed but for the need for such treatment. Therefore, so it is argued, the consequences of the motor vehicle accident have resulted from the original injury.
I do not accept this submission.
Mr Warwar’s submission involves an application of the “but for” test of causation. The correct test of causation in workers compensation matters is the “commonsense test”, as explained by Kirby P (as his Honour then was) in Kooragang (at 463–4):
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
Clarke JA expressed a similar view in Zinc Corporation Ltd & another v Scarce (1995) 12 NSWCCR 566, where his Honour said, at 570–571:
“It is now well established at common law that the test of causation is a common sense one. Any controversy on the question has been laid to rest by the decision of the High Court in March v E & HM Stramare Pty Ltd (1991) 171 CLR 506. What needs to be established is that the event which is sought to be linked with the injury ‘was so connected with the loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it’. (See Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR 1 at 7). The question is, of course, a question of fact which ‘must be determined by applying common sense to the facts of each particular case’ (see March at 15). In my opinion, there is no reason to adopt a different approach in relation to the test of causation posed by the words ‘arising out of’. The question of fact is whether there is such a connection between the worker’s personal injury and his employment that, as a matter of ordinary common sense and experience, the injury should be regarded as having arisen out of that employment. In deciding that question, my preferred view is that the test laid down by Jordan CJ in Nunan v Cockatoo Docks & Engineering Co Ltd (1941) 41 SR (NSW) 119 at 124 – that the fact of his being employed in the particular job caused, or to some material extent contributed to, the injury – should be applied. At the very least, the test requires that the employment was a contributing factor to the injury…”
A five-judge bench of the Court of Appeal referred to and applied the above principles in Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 7 DDCR 75.
The limited utility of the “but for” test is best illustrated with an example. Say a factory worker suffers a serious hand injury whilst working with one employer. The seriousness of the injury prevents the employer from providing any suitable employment and the worker obtains light supervisory work in a warehouse with a different employer and, whilst working there, a heavy box falls from a shelf and strikes the worker on the head causing head and neck injuries. But for the hand injury, the worker would not have been working with the second employer and would not have been struck on the head by the falling box. However, it is fallacious to say that the initial hand injury caused the head and neck injury (see Windeyer J in Faulkner v Keffalinos (1970) 45 ALJR 80 at 86).
Applying the commonsense test to the causal chain in the present case leads to only one conclusion, namely, that Mr Warwar’s injuries in the motor vehicle accident resulted from the negligence of a third party. It is true that Mr Warwar was returning to his home after receiving treatment for the injury he received in the first incident. However, to say that, but for his employment, he would not have been involved in a car accident is analogous to a worker saying, “If I had not gone to work today, I would not have been injured”. Such a statement is undoubtedly correct, but Mr Warwar’s injury was not a consequence of the mere fact that he was driving home from having received treatment for his first injury. As a matter of commonsense, it was a consequence of the negligent conduct of a third party.
The point is well-illustrated in Sarkis v Summitt Broadway Pty Ltd t/as Sydney City Mitsubishi [2006] NSWCA 358. In that case, the worker received injuries in a motor vehicle accident in the course of his employment in June 2001. In September 2001, he fell on stairs while visiting Dr Manohar for treatment of the injuries received in his car accident. The fall was, like Mr Warwar’s accident, on a journey within the terms of section 10(3)(c) of the 1987 Act. The fall caused comminuted angulated fractures to two bones in his right hand, and led to him developing reflex sympathetic dystrophy. In December 2001, the worker committed suicide. The employer settled the claim for death benefits by way of a compromise in the former Compensation Court of NSW.
The employer commenced proceedings under section 151Z of the 1987 Act against the negligent driver, seeking recovery of all compensation benefits paid to the worker and his dependants. The central issue was whether the suicide was a foreseeable consequence of the injury received in the motor vehicle accident in June 2001. In dealing with that issue, Handley JA (Ipp and Bryson JJA agreeing) said (at [17]):
“17. Liability under the Workers Compensation Act for a worker’s suicide depends on proof of causation. Liability under the Compensation to Relatives Act also requires proof that the suicide was a foreseeable consequence of the injury. The dependants could rely on the combined causative effect of both injuries but in seeking indemnity the employer can only rely on the motor vehicle injury. There was no evidence and no finding that the fall was a consequence, or a foreseeable consequence, of the earlier injury. The fact that ‘but for’ the latter the worker would not have been visiting Dr Manohar’s rooms does not establish causation: March v E & M H Stramere Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 516 (March); Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 at [26].” (emphasis added)
In the present case, the fact that Mr Warwar may not have been visiting the osteopath but for his 2007 injury does not establish that the injuries received in the motor vehicle accident have resulted from the first injury. There is no evidence that his employment made any relevant contribution to the motor vehicle accident. There is no evidence that, for example, the effect of the first injury made it more difficult for Mr Warwar to drive has car and that that fact contributed to the accident. Mr Warwar’s evidence was that the other driver caused the accident by failing to give way.
Mr Warwar also relied upon Filippou v Northern Sydney Central Coast Area Health Service (Manly Hospital) [2009] NSWWCCPD 35 (‘Filippou’). As a result of a compensable injury, Ms Filippou underwent surgery to her left shoulder in September 2004. Because of that surgery, her left arm either was in a sling or strapped to her torso. She injured her right shoulder when she placed all her weight on it (as she had to do because of her left shoulder injury) as she was attempting to get out of bed at her home on 17 October 2004. Applying the principles in Kooragang, I held that the injury to the right shoulder had resulted from her earlier accepted work injuries. The commonsense test of causation led to only one conclusion. Her left shoulder condition was a direct cause of her subsequent right shoulder injury. Any impairment caused by the right shoulder injury had plainly resulted from the earlier left shoulder injury and treatment.
The facts in Filippou are in stark contrast to those in the present case. Mr Warwar’s injuries in the motor vehicle accident resulted from the negligent conduct of a third party. They did not result from the injury to his lower back in 2007.
CONCLUSION
Having conducted a review on the merits, I have determined that, for the reasons given in this decision, the Arbitrator’s conclusions are true and correct. As Mr Warwar suffered two discrete injuries, one in 2007 and one in 2008, and as each injury had its own separate pathology and arose from separate injurious events, he is not entitled to aggregate the resulting impairments from those injuries to meet the section 67 threshold.
DECISION
For the reasons given in this decision, the Arbitrator’s determination of 28 April 2010 is confirmed.
COSTS
Each party is to pay his or its own costs of the appeal.
Bill Roche
Deputy President
25 August 2010
I, MARGOT UNDERCLIFFE, 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
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