Westbus Pty Limited v Benjamin

[2006] NSWWCCPD 25

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Westbus Pty Limited v Benjamin [2006] NSWWCCPD 25

APPELLANT:  Westbus Pty Limited

RESPONDENT:  Lawrence Benjamin

INSURERS:(i)         QBE Workers Compensation Limited

on risk – 30.6.94 to 30.6.99.

(ii)Vero Workers Compensation

(formerly Royal & Sun Alliance Workers Compensation) NSW Limited) on risk – 30.6.99 – 30.6.02.

FILE NUMBER:  WCC17092-03

DATE OF ARBITRATOR’S DECISION:          8 October 2004

DATE OF APPEAL DECISION:  22 February 2006

SUBJECT MATTER OF DECISION: Injury/disease; application of sections 15, 16 and 22 of the Workers Compensation Act 1987.

PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore

HEARING:On the papers

REPRESENTATION:  Appellant:      Hunt & Hunt Solicitors for

Vero Workers Compensation NSW Limited

Respondent:   Stormers Solicitors

ORDERS MADE ON APPEAL:  The decision of the Arbitrator is confirmed

The Appellant is to pay the costs of the appeal

BACKGROUND TO THE APPEAL

1. Lawrence Benjamin (‘the Respondent’) was employed by Westbus Pty Limited (‘the Appellant’) as a bus driver from 1989 to April 2001. He claimed that as a result of the nature and conditions of his employment with the Appellant from 1995 to April 2001, he suffered injuries to his back, neck and both arms.

1. The Appellant’s workers compensation insurers over this period were QBE Workers Compensation Limited (‘QBE’) from 30 June 1994 to 30 June 1999 and Vero Workers Compensation (formerly Royal & SunAlliance Workers Compensation (NSW) Limited) (‘Vero’) from 30 June 1999 to 30 June 2002.

1. The Respondent ceased work on 4 July 2000 and on 5 July 2000, lodged a claim against Vero. Under the heading “Accident Details” he stated:

“Re-occurrence of injury from 1995 in which I suffered muscle spasm in lower back (due to work place injury) after which I spent a week in hospital but did not claim workers compensation. Matter was reported to Phil Davies. Injury has progressively worsened. At time of original injury Phil Davies arranged for newer bus on shift to alleviate pain”.

1. It appears the Respondent remained off work for some months, eventually resuming selected duties in about November 2000 until his termination on 5 April 2001.

1. On 15 April 2003, the Respondent through his solicitors made a claim against Vero for lump sum compensation pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).

1. On 16 June 2003, Vero made an offer in respect of its period of risk, and noting “Kindly refer your claim to the previous insurer as your client’s symptoms commenced in 1995, which is prior to our period of risk”.

1. The Respondent rejected that offer, and on 31 October 2003, lodged an Application to Resolve a Dispute seeking permanent loss compensation for his injuries.

1. On 21 November 2003, the Appellant in the interests of Vero lodged a Reply disputing the extent of the losses claimed by the Respondent, denying that the Respondent suffered a disease, and relying on the provisions of sections 9A and 68A of the 1987 Act.

1. Following a teleconference on 4 March 2004, the Respondent was referred to Dr John Harrison, an Approved Medical Specialist, who examined him on 28 April 2004. In his report dated 16 June 2004, he assessed the Respondent’s losses, after deductions, as 4.5% permanent impairment of the neck, 9% permanent impairment of the back, 16.2% loss of use of the left arm at or above the elbow and 13.5% loss of use of the right arm at or above the elbow.

1. The matter was listed for arbitration hearing on 10 August 2004. On that day, the parties agreed to an award pursuant to section 66 of the 1987 Act as per the assessment of Dr Harrison. They also agreed to an award pursuant to section 67 of the same Act in the sum of $12,000.00. This agreement however was made without acceptance of any other matter referred to in Dr Harrison’s report, in particular, the ‘deemed date of injury’ of 5 April 2001 recorded on the referral letter to Dr Harrison.
   
   

2. The issues between the two insurers as to ‘injury’ pursuant to either section 4(a) or 4(b) of the 1987 Act, ‘disease’ pursuant to sections 15 and 16, and particularly ‘apportionment’ pursuant to section 22 of the same Act proceeded to arbitration hearing.

1. On 8 October 2004, a ‘Certificate of Determination’ issued with an accompanying ‘Statement of Reasons’ dated 29 September 2004. Briefly, the Arbitrator entered awards pursuant to sections 66 and 67 of the 1987 Act as agreed between the parties, and ordered Vero being the insurer “… on risk at the time of injury…”, to pay the compensation awarded, pursuant to section 15(1)(ii) and 16(1)(ii) of the 1987 Act.

1. On 28 October 2004, the Appellant, in the interests of Vero filed an Appeal against Decision of Arbitrator. The Appellant cites four grounds of appeal as follows:

“1.The Arbitrator erred in finding that there was only one date of injury, namely 5 July 2000;

2.The Arbitrator should have apportioned the award between the two insurers of the employer pursuant to WCA [Workers Compensation Act 1987] section 22 and section 22A.

3.The Arbitrator erred in finding that section 15 was applicable.

4.The Arbitrator erred in finding that neck impairment resulted from injury”.

1. On 3 December 2004, the Respondent wrote to the Commission advising that “The Respondent Worker makes no submissions as to how the section 66 and 67 Award should be apportioned.”

1. No reply to the appeal or submissions have been filed by QBE.

ON THE PAPERS REVIEW

1. Vero, the Appellant submits that the appeal can be determined on the papers. The Respondent is silent on this issue. Having carefully read the Arbitrator’s reasons, all the evidence before her, and the lengthy submissions with accompanying authorities made by Vero, I am satisfied that I have sufficient information within the meaning of section 354 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and in accordance with Practice Direction 1 to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.

LEAVE TO APPEAL

1. The amount at issue on appeal satisfies the criteria set out in section 352(2) of the 1998 Act. The appeal was filed in time. Leave to appeal is granted.

SUBMISSIONS, EVIDENCE AND FINDINGS

The Date of Injury Error

1. The referral to the Approved Medical Specialist by the Arbitrator on 4 March 2004, noted the ‘deemed date of injury’ as 5 April 2001.

1. The Arbitrator noted at paragraph 7 of her ‘Statement of Reasons’, that “…it was accepted that this may not have been agreed between the parties and that no reliance on this date should be made”.

1. The Arbitrator, after lengthy review of the medical evidence, the authorities and the parties’ submissions, concluded that (paragraphs 52 and 53) “In relation to the neck and back, I find pursuant to section 16(1)(ii) that the deemed date of injury is 5 July 2000, the date the claim was made. In relation to the arms, I find pursuant to section 15(1)(ii) that the deemed date of injury is 5 July 2000, the date the claim was made.”

1. The Appellant had vigorously disputed any deemed date of injury and had consistently rejected any allegation of ‘disease’ put forward by either the Respondent or QBE. The Appellant in its submissions states that “In respect of complaints of injury during the period of risk of QBE (30.6.94 – 30.6.99) the following evidence was before the Arbitrator: - …” The Appellant then quotes from various medical reports before the Arbitrator. Reference is made to a report from Dr Bodel, but it is not recorded by the Arbitrator (paragraph 12) as one of the medical reports before her.  It is also not contained in the documents included in the Appellant’s Reply.

1. In essence, the Appellant submits that all of the doctors in their reports had recorded the Respondent as complaining of back pain in about 1995. The Respondent in his statement dated 4 December 2002 said:

“My problems first started in about 1995 and 1996 when I developed back problems driving an automatic bus. I went to Fairfield District Hospital for one week where I had bed rest. I had to go to hospital because of muscle spasms. I then went back to work … I was given a different bus which was more comfortable … I had intermittent problems with my back but I kept working fulltime… I started to develop pins and needles in both arms especially in the fingers. I am right handed. I had a manual destination winder and I had problems winding it and as a result this hurt my right shoulder. I had to change the destination winder up to 20 times per day and this caused right shoulder problems. I found that the constant steering also caused problems. I was given a bus with an electronic winder in 1999 but I only had it for a few months … in July 2000 I asked for a better bus but the company refused and so I could not continue working.”

1. Dr Harrison in his report of 16 June 2004 recorded this history:

“… In 1994 he became aware of patterns of … lower back pain which troubled him at times after driving, but not of an intensity or severity such that he had elected to complain about it to his employers. The discomfort would settle after those exacerbating events and did not worry him everyday … On 14 October 2005 at home, he began to experience a severe pattern of muscle spasms in the lower part of his back that became quite disabling … He was transferred to Fairfield District Hospital …

He resumed work, but did not discuss with his employer … problems he had encountered with the No. 101 bus. He said it had a manual destination winder which he changed frequently each day and that caused him shoulder pain. He got a bus briefly with an electronic winder and that eased THAT problem for him. He was assigned … a more modern Volvo vehicle … which he drove from 1995 through until 1999 … After the company was sold, he was unfortunately put back into his OLD bus again and the problems recurred … He said late in 1999, he began to experience increasing patterns of back pain once more … He said early into the year 2000 he began to experience increasing patterns of neck pain, then arm pains …”

1. Dr Deveridge, in his report of 19 March 2003 recorded:

“He believes it was from about 1995 onwards that he started to develop low back pain and stiffness … about two years later he started to develop numbness and tingling in the fingers of both hands but more on the right side. Another year or so later the pain spread up his arms to the shoulders … and he developed some pain … around the base of his neck.”

1. Dr Muratore in his report of 12 March 2002 recorded this history:

“He has had no significant traumatic episode but noticed over a period of years that he developed a gradual onset on neck, low back, bilateral shoulder and wrist pain. His multiple symptomotology gradually became worse and he reported his symptoms repeatedly. In late 1999 … he was provided with suitable duties.”

1. Dr Cook in his report of 3 July 2001 recorded a history of “muscle spasm in the back” in 1995 followed by a week in Fairfield Hospital, and that he then returned to work. “He was given a more comfortable bus to drive, but then later on was put back onto the old bus …”

1. Dr O’Sullivan reported on 14 August 2000 that “In 1995 he lodged a claim for the back injury that he incurred at work after which he spent a week in hospital. He then made a full recovery from this but some two to two and a half years ago, he noticed the onset of a bit of lower back pain and spasm… he also complained of right shoulder and arm pain and weakness …”

1. All these histories,  the Appellant submits, “fixes the dates on or before 1999, therefore in QBE’s period of risk” and that there was, therefore, “… ample evidence before the Arbitrator of an injury or injuries to the worker’s back and arms prior to 30.6.99 …”

1. But what are those “injuries”? The Arbitrator stated at paragraph 48 of her ‘Statement of Reasons’ “I am unable to identify from the evidence any frank injury for any of the body parts the subject of the claim.” That is consistent not only with the Respondent’s statement but also the medical evidence. Whilst on one view of that evidence, there is a suggestion of an ‘incident’ in October 1995 leading to a period of hospitalisation, that evidence is entirely equivocal.

1. In submissions before the Arbitrator, Counsel for QBE had also made reference to the Fairfield Hospital clinical notes and to a report from the Respondent’s general practitioner, Dr Williams, dated 11 June 2001.  The hospital notes record the Respondent’s admission to Fairfield Hospital on 14 October 1995. The history recorded was this:

“… C/o (L) lower back pain … work related back pain due to disc injury in 1977. Intermittent pain since … yesterday – got out of the car, standing up forcefully → (L) lower back pain”.

1. Dr Williams, who saw the Respondent regularly from 7 June 2000, concluded that “he has cervical and lumbar spondylosis which has been contributed to and subsequently aggravated by his employment”.

1. As the Arbitrator pointed out at paragraph 34 of her Statement of Reasons,:

“This claim is based on an assertion by the Applicant that he suffered injury as a result of the nature and conditions of his employment with the Respondent. The term ‘nature and conditions of employment’ is often used but is not found in the Workers Compensation Act 1987. It is a short-hand way of saying that the injury is as a consequence of the tasks that a person performs regularly in the course of his or her employment.”

1. In the absence of adequate evidence in support of a finding of a ‘frank injury’ within the meaning of section 4(a) of the 1987 Act, the Arbitrator’s task, as she correctly stated at paragraph 35 of her ‘Statement of Reasons’, was to determine

“… whether one or more of the injuries to one or more of the body parts is … an injury which results from either a disease which is contracted by a worker in the course of employment and to which the employment was a substantial contributing factor; or the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration” within the meaning of section 4(b) of the 1987 Act.

She then said “The result of this enquiry will determine whether or not ss 15 or 16 of the Act have any application in the apportionment of responsibility for payment by one or both of the two insurers on risk … or whether s.22 of the Act is the appropriate section…”

1. The Arbitrator summarised the medical evidence contained in the reports to which I have previously referred in paragraphs 19 – 24 of her ‘Statement of Reasons’. In paragraphs 25 – 33 she summarises the submissions made by the representatives for both QBE and Vero and refers to a number of authorities. Under the heading ‘Findings and Reasons’, she then embarks on an examination of “the concept of disease”, with reference to the various authorities referred to by Vero and QBE. As she correctly stated (paragraph 39) “It is necessary to apply each of the above legal principles and/or decisions to the facts in the Applicant’s case.” She notes the Respondent’s complaints of back problems in 1995 or 1996. She then quotes from medical reports as follows: (paragraph 42)

“Dr Deveridge opines that ‘your client  has moderate ongoing disability with frequent neck and back pain with stiffness; this is due to aggravation and acceleration of degenerative spondylosis in the cervical and lumbar segments of his spine’”.

1. Then at paragraph 43, “ … Dr Deveridge states that ‘he has an underlying disease process namely degenerative spondylosis in his neck and back. I believe that this disease process was aggravated and accelerated by the nature and conditions of his employment’”.

1. At paragraph 44, she quotes from Dr Williams’ report as I have quoted in paragraph 34 above. At paragraph 45, she states:

“On behalf of the Respondent, Dr Muratore states that the Applicant suffers from cervical and lumbar spondylosis. Dr Cook opines that his back symptoms can be ‘attributed to normal wear and tear and degenerative changes in a man of 51’ … Dr O’Sullivan opines that his lumbar spine is ‘a simple musculoligamentous strain and does not represent significant pathology’”.

1. She then concludes (paragraph 50)

“In relation to the injury to the back and neck, I find that they are as a result of the aggravation, acceleration, exacerbation or deterioration of a disease. I have come to this conclusion based on the weight of evidence which discloses that the Applicant did have some pre-existing degenerative changes and lumbar and cervical spondylosis”.

1. This conclusion was open on the evidence before her.

1. Section 16 of the 1987 Act provides as follows:

“(1)If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease -

(a)The injury shall, for the purposes of this Act, be deemed to have happened -

(i)at the time of the worker’s death or incapacity; or

(ii)if death or incapacity has not resulted from the injury – at the time the worker makes a claim for compensation with respect to the injury; and

(b)compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration”.

1. The Arbitrator concluded that the ‘deemed date of injury’ with respect to the neck and back was the date the claim was made, namely 5 July 2000. Whilst there was certainly evidence of some ‘incapacity’ in 1995 or 1996, there was some doubt as to whether it was indeed ‘work related’. Further, there was also evidence (Dr Sullivan) that the Respondent “recovered completely” or at least, after the provision of a different bus, his symptoms “… did not worry him everyday …” (Dr Harrison) such that the Arbitrator was entitled to conclude on the evidence before her that the relevant date was the date the claim was made. In those circumstances, it follows that pursuant to section 16(1)(b), Vero was liable to pay compensation.

1. The Appellant submitted to the Arbitrator (paragraph 27) that “… this was strictly a ‘nature and condition’s’ claim… the Applicant did not have an underlying problem but rather, different manifestations of symptoms at different times as a result of the nature and conditions of his employment with the Respondent.”

1. And then at paragraph 28:

“… if the Applicant’s symptoms commenced in 1995 in relation to the back, then the appropriate course of action is to apportion the payment of compensation by reference to the time on risk (being 2/3 of the time for QBE and 1/3 to Vero)… given the differing medical opinions, the safest way to deal with the question of apportionment of liability is to deal with it in accordance with a ‘time on risk’ basis”.

1. However, once the Arbitrator had concluded that the Respondent suffered an injury within the meaning of section 4(b)(ii) of the 1987 Act, section 16 of that Act came into operation, such that the Arbitrator’s finding as to the ‘deemed date of injury’ was available on the evidence before her.

The Section 15 Error

1. As to the injury to the Respondent’s arms, the Arbitrator said (paragraph 49):

“The evidence and the law in relation to the injury to the arms lead me to the conclusion that the injury to the left and right arms is the result of a disease process. In making this finding, I have had regard to the medical evidence submitted on behalf of both the Applicant and the Respondent and to the decision of Judge Burke in Perry v Tanine Pty Limited as outlined above”.

1. In Perry v Tanine Pty Limited (1998) 16NSWCCR253 (‘Perry’) Burke J as he then was concluded that (para 57) “In general, it seems to me that carpal tunnel syndrome is a failure of an area of the body to cope with repeated stress imposed upon it and reacts to that stress by developing swelling, pain and loss of function as a consequence. That seems to me to be classically a disease process: Where work is the source of the relevant stress it connotes to me that the worker has received injury either by the contraction or aggravation of a disease”.

1. The Appellant submits that “in section 15, the injury itself is a disease, so that it is necessary to show that the disease was contracted in the course of employment and that employment was a contributing factor.”

1. However, applying the principles in Perry, the evidence from the Respondent was to the effect that the symptoms he experienced in his arms (diagnosed as carpal tunnel syndrome) were a consequence of the work performed with the Appellant. On that evidence then, in other words, they arose out of and in the course of employment, and the employment was a contributing factor. 

1. The Appellant’s submission that “the AMS is not conclusive as to disease” is fairly put. Nevertheless, it is evidence, the weight of which was the task of the Arbitrator to assess. Dr Harrison opined:

“It is my opinion that the disease process as it affects his neck is pain and referred pain from the neck due to cervical spondylosis. The generally held view is that symptomatic cervical spondylosis can enhance the vulnerability to develop carpal tunnel compression which did affect him in a significant way in the middle of the year 2000 as an aspect of a disease process that was negatively affected by the nature and conditions of his work as a bus driver …”

1. Again, the Arbitrator’s conclusion was open to her on the evidence available and I can see no error in her determination on this issue. As the Appellant effectively concedes in his submissions, “even if the Arbitrator was correct in determining that the disease provisions were applicable to the arms, it does not follow from the history that the disease provisions are applicable to the back”.

The Section 22 “Apportionment” Error.

1. The Appellant submits that:

“The Arbitrator had ample evidence to apportion any lump sum compensation to both insurers pursuant to section 22. The worker clearly had a back injury in 1995 … thereafter, on the majority of the evidence, the worker continued to suffer intermittent back problems which gradually became worse over time… there was clearly an injury, or frank injury, during QBE’s period of risk which has given rise to the right of apportionment and the Arbitrator has erred in not making such an apportionment.”

1. That submission of course depends on the finding of injury, and this issue has been canvassed in the preceding paragraphs.

1. The Appellant then goes on to say “Even if the disease provisions are applicable to the back, apportionment of liability pursuant to section 22 should have been determined by the Arbitrator in accordance with the decision in Dimovski and Mecha [supra]” because “even if there is a finding of disease, this does not exclude apportionment pursuant to section 22 in circumstances where the worker has suffered a prior frank injury, as is the case in the present matter during QBE’s period of risk”.

1. These submissions again of course, depend on the ultimate finding of ‘injury’. As I have said, in the absence of a finding of a ‘frank injury’ or indeed ‘microtraumata’ resulting from the nature and conditions of employment, as referred to by the Appellant, (a finding open to the Arbitrator on the evidence), section 16 came into operation.

1. The decisions referred to by the Appellant of Rail Services Australia v Dimovski & Anor [2004] NSWCA 267 (Dimovski) and Australian Conveyor Engineering Pty Limited v Mecha Engineering Pty Limited (1998) 18 NSWCCR 309 and indeed Colliar v Bulley (2000) 19 NSWCCR 301 (Colliar) and Lyons v Master Builders Association of NSW Pty Limited (2003) 25 NSWCCR 422 (Lyons) referred to earlier and included in the Appellant’s submissions, all demonstrate that findings of ‘injury’ pursuant to section 4 of the 1987 Act will depend upon the facts of each case.

1. In Dimovski, the Court of Appeal held that apportionment under s22 was applicable since the later ‘frank injury’ to the left leg was not, in the circumstances of that case, an aggravation of a disease within the meaning of section 16. The court declined to follow Colliar.

1. In Colliar, the Court of Appeal held that the trial Judge erred in law in finding that a later injury was a frank injury and not a “progressive disease injury” such that section 16 would apply as a matter of law. As Davies A – JA said, (with Meagher JA agreeing) at paragraph 72:

“… the width given to par (a) of the definition [section 4 of the 1987 Act] provides no reason for reading down the meaning of the words in par (b)(ii) thereof or the words of s16. I accept that, if an aspect of a disease is compensable only because it constitutes an injury in the course of employment within par (a), that injury would not fall within the scope of s16. I do not accept that an injury, which constitutes an aggravation or other exacerbation of a disease and to which the employment has contributed, falls outside s16 simply because the claim for compensation was or could have been framed in terms of par (a) of the definition”.

1. Further, at paragraph 75, he said “Employment may contribute to the aggravation, acceleration, exacerbation or deterioration of a disease either through the long-term nature and conditions of the employment or by the happening of a single incident. No words in par (b)(ii) of the definition of ‘injury’ turn upon the nature of the contribution. Such a submission was specifically rejected in MLC Insurance Limited v Pinto.” Further, at paragraph 76:

“When s16 applies, it applies as a code and excludes the operation of other provisions such as s22… Section 15 is a self-contained code which deals exclusively with injuries of the kind which fall within its terms. One can express the same point by saying that it is a special provision which stands outside the general provision in s22”.

1. In Mecha, the trial Judge found that the worker suffered a ‘frank injury’ in February 1992 and further injuries as a result of the ‘nature and conditions’ of employment between November 1995 and April 1996. He rejected the argument by Australian Conveyer Engineering that section 16(1)(b) applied in those circumstances to require Mecha to pay the entire award, and apportioned the award between the two employers pursuant to section 22 of the 1987 Act. The Court of Appeal upheld the trial Judge’s decision in that particular case. Sheller JA, in dismissing the appeal, held that (paragraph 36):

“There seems no particular reason why, when a worker is injured in the course of employment when falling from a rickety welding platform, a different employer, who employs the worker later, should be liable to compensate him for earlier injury, the result of the fall, simply because the fall aggravated a pre-existing disease, subsequently further aggravated by conditions of employment when the worker was employed by the later employer…. In short, s16 is confined to what are entirely aggravation injuries”.

1. Powell JA agreed, finding that (paragraph 49) “… it was open to the trial Judge to hold that the worker’s impairments were due to two discrete ‘injuries’ … this being so, it seems to me that the case did not call for the application of the provisions of s16 of the Act”.

1. Fitzgerald A- JA, although dissenting, made this pertinent remark (paragraph 68):

“Mecha submitted that, even if s16(1) was satisfied, it was open to the trial Judge to apportion compensation under s22(1)A. While the terms of the latter provision taken in isolation are literally wide enough to encompass a situation which fits s16(1), both provisions must be taken in context. It seems to me plain that the special provision made in s16(1) is intended to prevail over the general language of s22(1A)”.

1. In the present case, as I have said, the Arbitrator found that the evidence was insufficient to demonstrate that the Respondent had suffered a ‘frank injury’, unlike the circumstances of Dimovski, Mecha and Lyons referred to above. That finding was open on the evidence. In those circumstances, section 16 of the 1987 Act came into operation such as to exclude the operation of section 22.

1. The Appellant submits that:

“There was a plethora of evidence before the Arbitrator which demonstrated that the worker received injury or injuries during 1995 and 1999 when QBE was on risk. The Arbitrator should (my emphasis) have found that as a result of the general nature and conditions of employment, the worker suffered a number of injuries at varying times.”

1. Whilst the Arbitrator could have found ‘frank injury or injuries’, such a finding in my view would have been unsound given the totality of the evidence, and in particular the hospital records.

1. Accordingly, the Arbitrator’s claimed “failure” to apportion between the two insurers was not an error on the facts as she determined them, and was in accordance with the authorities referred to above.

1. Given her findings, section 18 of the 1987 Act would come into operation to place liability on Vero.

The Neck Impairment Error

1. The Appellant submits that “… there was insufficient evidence, and lack of reasons, for the Arbitrator to find that the worker suffered a neck injury either arising out of or in the course of employment with the employer”.

1. Nevertheless, the Appellant effectively conceded an injury to the neck in consenting to an award for permanent impairment of the neck. Section 66 of the 1987 Act provides for an entitlement to permanent loss compensation where a worker “… receives an injury (my emphasis) that results in permanent impairment …”

1. In any event, I consider that there was sufficient evidence both from the Respondent and in the medical reports for the Arbitrator to make such a finding.

CONCLUSION

1. The findings of fact made by the Arbitrator were open to her on the evidence before her.

1. Whilst on one interpretation of the evidence with respect to the back injury, an alternative finding may have been available and an alternative ‘deemed date of injury’ found, the evidence in that respect was, as I have said, equivocal to say the least. The Arbitrator’s reasons sufficiently demonstrate the grounds for the findings made and I can see no errors of either law, fact or discretion sufficient to revoke the Arbitrator’s determination.

DECISION

1. The decision of the Arbitrator is confirmed.

COSTS

1. The Appellant is to pay the costs of the appeal.

Deborah Moore

Acting Deputy President

22 February 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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