Wilson v Kennedy & Kennedy t/as PJ & BM Kennedy
[2006] NSWWCCPD 183
•14 August 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Wilson v Kennedy & Kennedy t/as PJ & BM Kennedy [2006] NSWWCCPD 183
APPELLANT: Robert Malcolm Wilson
RESPONDENT: Philip J Kennedy & Bronwyn M Kennedy t/as PJ & BM Kennedy
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC1377-05
DATE OF ARBITRATOR’S DECISION: 21 June 2005
DATE OF APPEAL DECISION: 14 August 2006
SUBJECT MATTER OF DECISION: Shearer: Disease, sections 4, 15 and 16 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Tydd
HEARING:On the Papers
REPRESENTATION: Appellant: McCabe Partners
Respondent: Sparke Helmore
ORDERS MADE ON APPEAL: Paragraphs 3, 4 and 5 of the decision of the Arbitrator dated 21 June 2005 are revoked and the following decision is made in their place:
“That the Respondent (Philip J Kennedy & Bronwyn M Kennedy t/as PJ & BM Kennedy) pay the Appellant (Robert Wilson) weekly compensation at the rate of $231.00 from 1 May 2004 to date and continuing under Section 40 of the Workers Compensation Act 1987.
That the Respondent pay the Appellant’s medical and related expenses pursuant to section 60 of the Workers Compensation Act 1987 upon production of invoices and receipts.
That the matter be remitted to another Arbitrator for referral to an Approved Medical Specialists for assessment of the injuries to Mr Wilson’s neck, right arm, left arm, back, right leg, left leg and assessment of sexual dysfunction in accordance with the findings set out in this decision.
Paragraphs 1, 2 and 6 of the Arbitrator’s decision are not the subject of this review and their status is confirmed.”
The Respondent to pay the Appellant’s costs of the appeal.
BACKGROUND TO THE APPEAL
Prior proceedings
Robert Malcolm Wilson (‘Mr Wilson’) was been employed as a shearer for over thirty years. In 1999 Mr Wilson made a claim against two previous employers, PJ Marks, First Respondent and Adam Richard Marks & Peter Ashton Marks, Second Respondent.Mr Wilson claimed “degeneration of [his] neck” and associated pain in his back and both arms together with “….carpel tunnel syndrome in the right arm and left arm, being a disease of such a nature as to be contracted by a gradual process...” to which employment as a shearer was a substantial contributing factor. Mr Wilson claimed that the Second Respondent was his last employer in employment to the nature of which the disease was due. This claim was settled by Commutation with Short Minutes of Order filed in the Compensation Court of NSW (‘the Court’) on 21 August 2001.
The Short Minutes of Order required the Respondents, to make weekly payments redeemed and commuted in whole from 1 January 1965 by the payment of $101,000.00 in addition to payments already made to date for injuries to Mr Wilson’s skull, both shoulders, neck, back, both arms, both hands, all fingers, chest, pelvis, whole of spine, both hips, both legs, both feet, all toes, all sexual organs, any psychological consequence of these injuries and/or any psychiatric injury.
On 30 January 2004 Mr Wilson’s solicitors filed a claim for industrial deafness in the Workers Compensation Commission (‘the Commission’), naming Adam Richard Marks & Peter Ashton Marks as the Respondent (matter number WCC 1874-04). At the teleconference, conducted on 14 May 2004 Mr Wilson advised that he had returned to shearing. Accordingly the issue of last employer arose and the matter was discontinued by Mr Wilson.
Application to Resolve a Dispute
On 31 January 2005 the Mr Wilson’s solicitor lodged another Application to Resolve a Dispute in the Commission (matter number WCC 1377-05). Mr Wilson claimed to be employed as a shearer by Philip J Kennedy & Bronwyn M Kennedy t/as PJ & BM Kennedy (‘the Kennedys’) from 1 April 2003 and 30 April 2004 [for a total of 72 days]. Mr Wilson claimed “industrial deafness, pain in the neck, right arm, left arm, back, right leg, and left leg.” Mr Wilson’s claim was made pursuant to sections 15 and 16 of the Workers Compensation Act 1987 (‘the 1987 Act’). He claimed that his injuries were caused and or materially aggravated whilst employed by the Kennedys. Mr Wilson claimed that in the course of his employment as a shearer he contracted a disease of gradual process to which employment was a substantial contributing factor.
Mr Wilson sought compensation in the form of weekly benefits and awards pursuant to sections 66 and 67 of the 1987 Act for injuries to the neck, right arm, left arm, back, right leg, left leg, sexual dysfunction and industrial deafness. He also claimed section 60 expenses for the cost of hearing aids and other medical related expenses.
In a Late Reply dated 11 April 2005 the solicitor for the Kennedys disputed all aspects of the claim including that the claim was not “duly made”; incapacity; deductions for prior awards; the section 67 threshold and that employment was not a substantial contributing factor.
On 12 April 2005 a teleconference was conducted at which time the Late Reply was admitted and ‘Directions for Production’ were made. The matter was set down for conciliation/arbitration on 23 May 2005 and proceeded to arbitration on that day. The Arbitrator issued a ‘Certificate of Determination’ and a ‘Statement of Reasons’ dated 21 June 2005.
Lodgement of the appeal
On 7 July 2005 Mr Wilson sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Commission against the Arbitrator’s decision dated 21 June 2005.
The Kennedys are the Respondent to the appeal and their solicitor filed a Notice of Opposition to the appeal on 2 August 2005.
The insurer is CGU Workers Compensation (NSW) Limited.
THE DECISION UNDER REVIEW
The Certificate of Determination records the Arbitrator’s orders as follows:
“1. The Applicant was employed by the Respondent in employment to the nature of which the hearing loss was due. The Respondent is the relevant employer for the purposes of s17(c) of the Workers Compensation Act 1987.
2. In the event that the parties are unable to agree on a resolution of the hearing loss claim within 14 days of the date of the Certificate of Determination, this matter is to be referred to an Approved Medical Specialist selected by the Registrar for assessment of whole person impairment arising from the hearing loss. An AMS referral is attached to these Orders for that purpose.
3. The Respondent is not liable for the payment of the Applicant’s claim under s66 and s67 of the Workers Compensation Act 1987 with respect to the claim for the arms, legs, back, neck, and sexual organs.
4. Award in favour of the Respondent in respect of the Applicant’s claim for weekly payments of compensation.
5. That the Respondent pay the Applicant’s s60 of the Workers Compensation Act 1987 medical expenses arising from the hearing loss injury on production of accounts or receipts. An award otherwise for the Respondent.
6. That the Respondent pay the Applicant’s costs as agreed or assessed, and for this purpose I certify the matter complex.”
As set out, the Arbitrator made an award in favour of Mr Wilson in respect of the claim for industrial deafness and determination is not raised on appeal. Accordingly the claim in respect of injuries to the neck, back, right arm, left arm, right leg, left leg and sexual dysfunction are in issue on appeal.
ISSUES IN DISPUTE
The issues in dispute on appeal are that the Arbitrator erred in:
·failing to properly address the requirements of sections 15 and 16 of the 1987 Act; and
·failing to determine liability in favour of Mr Wilson in accordance with section 15(1)(b) of the 1987 Act.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and WorkersCompensation Act 1998 (‘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.”
Mr Wilson’s solicitor submits that to ensure a “fair hearing” this matter should not be determined on the papers. The case of Re Refugee Review Tribunal; ex parte Ala (2000) CLR 82 is cited as authority that a decision-maker “should not make an adverse finding relevant to a person’s rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided.” (McHugh J at page101). The Kennedys submit that the appeal should be determined ‘on the papers.’
On 16 June 2006 I issued a ‘Direction for Production’ of copies of all documents relied upon by the Respondent at the arbitration, as copies of those documents tendered by the Respondent and listed in the decision of the Arbitrator were not retained on the Commission file. The Kennedys produced those documents on 23 June 2006.
Both parties are legally represented as they were in proceedings before the Arbitrator and filed lengthy submissions on appeal. The parties are, or ought to be aware of the substantive issues in dispute between them and the issues in contention on appeal. The Commission’s procedures provide an opportunity for parties to make an application to admit additional material or to make further submissions. Neither party has sought to do so. In my view the parties are, or should be aware of the risks in relation to an adverse finding inherent in the issues raised on appeal. Both parties have been provided with an opportunity to address these issues. Having considered the submissions, the Arbitrator’s Reasons, the transcript and all the evidence before the Arbitrator (which has now been produced), I am satisfied that I have sufficient information within the meaning of section 354 of the 1998 Act and in accordance with Practice Directions 1 and 6 to proceed ‘on the papers’ without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on the appeal is determined by reference to the amount of any monetary award made by the Arbitrator (Grimson v Integral Energy [2003] NSWWCCPD 29). The dispute before the Arbitrator was a claim of compensation in the sum of $39,750.00. I am satisfied that the amount of compensation at issue on appeal is both at least $5,000.00. I am also satisfied that the amount of compensation at issue is at least 20% of the amount awarded in the decision appealed against. I am satisfied that the requirements of Section 352(2) of the 1998 Act have been met.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
SUBMISSIONS
Mr Wilson’s submissions
Mr Wilson’s solicitor submits that the claim was brought pursuant to sections 15 and 16 of the 1987 Act and Mr Wilson’s employment as a shearer has given rise to a disease of such a nature as to be contracted by a gradual process to which employment as a shearer was a substantial contributing factor. Mr Wilson’s solicitor refers to a number of authorities in support of the proposition that Mr Wilson’s disease has been accepted as ‘incidental’ to that class of employment so that it can be attributed to his service therein. The authorities cited include Crisp v Chapman 10 NSWCCR 1994 (‘Crisp’).
In these circumstances Mr Wilson’s solicitor submits that:
·it is not necessary for the worker to establish that disease was actually brought about, or contributed to by the employment nor need aggravation be material (Treloar v Australian Telecommunications Commission (1990) 97 ALR 321);
·the x-rays and CT scan of 22 January 2004 confirm degenerative changes, osteophyte formation, restriction of movement and canal stenosis which are diseases within the 1987 Act (Kenneth J Mazoudier v K & M Dunne and Ors matter number 55744-2001; Al Newstead v Darryl W Vane and Ors (matter number 2824-1998); Trevor J Price v Leifman Pty Limited (matter number 12521-1996)) and these injuries are a direct consequence of many stresses over a considerable period of time arising as a result of shearing;
·the reports of Drs McCarthy and Berry both diagnose Mr Wilson with degenerative disease. This medical evidence establishes the claim and the report of Dr Lowy supports the claim for sexual loss not previously claimed, and
·the evidence of Dr Berry should be preferred as it was by Bishop J in the matter of Jimmy Brack v WK & BA Colless (matter number 18000/97).
The Kennedys’ submissions
In summary the Kennedys’ solicitor submits that the Arbitrator correctly applied sections 4 and 16 of the 1987 Act taking into account the earlier Commutation and the evidence before him. Further, the ‘Application to Appeal’ fails to demonstrate that the Arbitrator committed a demonstrable error of fact, law or discretion.
The Kennedys’ solicitor submits the Appellant’s submissions fail to address the consequences of the Commutation which settled the claim for injuries to Mr Wilson’s “skull, both shoulders, neck, back, both arms, both hands, all fingers, chest, pelvis, whole of spine, both hips, both legs, both feet, all toes, all sexual organs, any psychological consequence of these injuries and/or any psychiatric injury”. The practical effects of the earlier proceedings are:
“(i) That the worker in that particular case had suffered injury in the employ of the two Respondents.
(ii) That any injury being a disease of gradual process (section 15) had been suffered prior to the date of the commutation at 21 August 2001.
It extinguished the worker’s right to claim that the disease arose again so as to cause another employer, at a later date, to be liable for the disease of gradual process that had affected those body parts the subject of that earlier claim.
Section 15 of the Act fixes a date of injury, it may well be an artificial date, however the purpose of Section 15 is to allow simplicity in establishing date of injury rather than the worker attempting to track through a myriad of employers.
What it does however is fix for the purposes of the Act a date when the disease of gradual process has operated to cause an injury. It fixes an employer who is liable for the causation of the disease contracted by a gradual process which is the injury.
Section 15(1)(b) determines that the employer who is liable for that disease of gradual process is that employer who last employed the worker in the employment to the nature of which the disease was due. That is to say the employer who employed the worker prior to injury.
(iii) That any further claim that the worker has suffered after August 2001 must therefore be based on injury by way of frank incident or Section 4(b)(ii), that is to say an aggravation of the disease that had been found to exist because of injury in the employ of those Respondents in earlier proceedings.”
The Kennedys’ solicitor submits that, as a consequence of the Commutation, any ‘injury’ claimed could only be found to be an aggravation of a disease and injury would only be proven if that aggravation, acceleration, exacerbation or deterioration was caused by employment (Cant v Catholic Schools Office (2000) 20NSWCCR88). The Kennedys’ solicitor submits that the evidence establishes that any aggravation of the disease has now ceased.
EVIDENCE AND FINDINGS
In determining the appeal it is necessary to distinguish the medical evidence relied upon in proceedings before the Court and that relied upon in support of the injuries claimed in these proceedings.
Medical evidence filed in support of proceedings before the Court
The Kennedys filed radiological reports dated 22 August 1993, 24 August 1993 and 22 March 1999. The 1993 reports contained findings in relation to Mr Wilson’s left elbow noting joint effusion and supracondylar spurs. The 1999 report commented on the results of an ultrasound to Mr Wilson’s right shoulder which revealed a bicipital effusion and partial thickness tear of the supraspinatus tendon.
Also in evidence were clinical notes of Dr McCarthy, Mr Wilson’s general practitioner dating from 1987 to 26 July 2004. Mr Wilson’s history of injuries to his right knee and right shoulder are documented in these records. Of significance to the matters raised on appeal is the entry dated 2 May 1997 which comments that Mr Wilson’s lumbar spine was normal.
The reports of Mr Wilson’s treating orthopaedic surgeon, Dr Rizkallah were also before the Arbitrator. In his report dated 23 January 1999, Dr Rizkallah diagnosed Mr Wilson as having “right shoulder impingement, calcific tendonitis and partial thickness tear of the rotator cuff”. Dr Rizkallah concluded that Mr Wilson is “significantly disabled with his right shoulder” and any surgical treatment will at “best reduce his level of discomfort”. In his report dated 21 November 2001 following surgery to Mr Wilson’s shoulder Dr Rizkallah noted that impingement signs were negative and Mr Wilson was pleased with the results of surgery.
The report of Dr Bentivoglio, neurosurgeon, dated 19 October 2000 was also tendered in the Court proceedings. Dr Bentivoglio diagnosed Mr Wilson with a permanent injury to his right shoulder as a result of a partial thickness tear of the supraspinatus tendon, an impingement syndrome and degeneration of the left elbow directly related to his work as a shearer. Dr Bentivoglio provided an assessment of 30% permanent impairment of Mr Wilson’s right shoulder and 20% impairment of his left elbow.
Dr Berry, surgeon also provided a medico-legal report which was relied upon in the earlier proceedings, dated 21 June 1999. In this report Dr Berry concluded that:
· Mr Wilson has a long history of chronic back pain going back 20 years with associated shoulder, neck and left elbow pain. These conditions are consistent with working in the shearing industry. Mr Wilson experiences back pain if he does any heavy lifting or repetitive bending;
· “His major problems relate to his right shoulder and his left elbow. He has a partial tear of the right rotator cuff mechanism and medial and lateral epicondylitis of the left elbow.”;
· Mr Wilson’s upper limb problems are a direct consequence of the nature and conditions of his work as a shearer and he has “repeatedly aggravated neck and back degeneration changes over the years as a shearer.”;
· Mr Wilson is permanently unfit to work as a shearer or in any heavy labouring work. He is fit to run a café and do lighter sedentary duties, his prognosis is guarded as his symptoms and disability persist, and
· Mr Wilson has a 10% permanent impairment of the neck, 20% permanent loss of efficient use of the right arm at or above the elbow, 15% permanent loss of efficient use of the left arm at or above the elbow and 10% permanent impairment of the back.
Medical evidence filed in support of proceedings before the Commission
The clinical notes of Dr McCarthy provide the first medical evidence of Mr Wilson suffering from spinal degeneration. The entry of 4 December 2003 commented that Mr Wilson’s lumbar spine was degenerative and Mr Wilson presented to Dr McCarthy with continuing back pain on 5 January 2004. In his report dated 29 July 2004, Dr McCarthy diagnosed Mr Wilson as having “…chronic lumbar degenerative disease (emphasis added) and any work such as shearing is likely to exacerbate this.”
The radiological report of Dr M Sequeira, dated 22 January 2004 was before the Arbitrator. The report commented on the results of x-rays to Mr Wilson’s cervical, thoracic and lumbar spine together with a CT scan of the lumbar spine. In summary, the report concluded that Mr Wilson suffered from “cervical, thoracic and lumbar spondylosis with loss of height of the bodies in the thoracic region and narrowing of the disc space in the cervical region…bilateral defects in the pars interarticularis of L5 and broad based bulging of the L4/L5 disc with fragmentation seen herniating centrally at this level.”
Dr Berry provided a report in support of Mr Wilson’s current claim, dated 19 August 2004. In that report Dr Berry concluded that:
·since his last consultation Mr Wilson worked managing a café with his wife;
·as a result of increasing pain in his right shoulder Mr Wilson underwent right shoulder surgery in October 2001. After approximately 2 months Mr Wilson recovered from this procedure and he then returned to activities in the café until it burnt down in April 2003;
·Mr Wilson then attempted to go back to shearing and sheared full time for 6 months using a sling to protect his back. Mr Wilson then found he was experiencing episodic back pain with minor incidents, one such incident was sudden and severe back pain when he tripped in his back yard and another occurred with sneezing;
·Mr Wilson attempted to continue working until April 2004 when he consulted his general practitioner for his back pain and then ceased work;
·Mr Wilson has “...a long history of chronic pain in the neck, back, right and left shoulders and in the left elbow consistent with the diagnosis of supraspinatus tendonitis in the shoulders, epicondylitis in the left elbow and degenerative disc disease in the neck and back. I would attribute the patient’s ongoing symptoms directly to the nature and conditions of his work as a shearer.”, and
·“Mr Wilson is permanently unfit for work as a shearer or in any other manual occupation requiring the forceful repetitive use of upper limbs and working in a crouched or stooped position. His prognosis remains guarded as he is still symptomatic.”
Dr Berry also stated that Mr Wilson had not aggravated any pre-existing condition and had “developed degenerative disc disease of the neck and back which may progress with the years (emphasis added). It is difficult to assess at this point of time any increase in disability or impairment.” Dr Berry provided a whole person impairment of 14% with reference to Mr Wilson’s neck, back and each arm.
Dr Berry provided a further report dated 25 January 2005. The report did not indicate that Dr Berry had re examined Mr Wilson. However Dr Berry concluded at Mr Wilson was “...now suffering from pain in both legs which came on the last day that he actually did any shearing. The pain in the legs is referred pain rather than true radiculopathy and he would therefore be considered to have a 10% permanent loss of efficient use of each leg at or above the knee including losses below the knee.”
Dr Vote, orthopaedic surgeon provided a medico-legal report for the Kennedys dated 27 April 2005. Dr Vote concluded that:
·Mr Wilson’s history is one of injury to his back over 25 years ago when he was shearing and he “…appears to have a somewhat suspect back since...”. He sustained an injury to his right shoulder in 1989 leading to a surgical repair of his rotator cuff and subacromial decompression in 2001. He also experienced an acute episode of pain and swelling of his left arm and elbow in 1993. It settled but he still experiences some stiffness and discomfort in the elbow;
·Mr Wilson’s presenting symptoms relate to his right shoulder, left elbow and lumbar spine. He experiences neckache, backache, intermittent episodes of acute low back pain which is occasionally associated with some referred pain in his left leg;
·Mr Wilson undertook a “trial of shearing” towards the end of 2003 and during this time he noticed increasing discomfort in his back and shoulder. He has not worked for the last twelve months and “...overall there is an improvement in his situation now as to when he ceased work in early 2004.”;
·“Overall, Mr Wilson presents as a man with established degenerative arthrosis of both his cervical spine, lumbar spine and left elbow. He also has some ongoing symptoms in relation t [sic] his right shoulder which has been improved by surgery.”;
·Mr Wilson’s current complaints of pain should be “...viewed as a short-term aggravation of an already established and well-documented problem and “...at this point in time that that aggravation has ceased.”;
·Mr Wilson is not fit to return to shearing. He could undertake light to moderate work such as running a café on a part time and “...probably a full time basis.”;
·the restrictions on Mr Wilson’s employment are as a result of problems affecting his right shoulder, lumbar spine and left arm. “These in turn are directly related to the long history of shearing and bear in my view no relationship to his three months work with the Kennedy’s [sic].”, and
·Mr Wilson’s impairment could not “reasonably be related to his period of employment with the Kennedy’s [sic]”.
In relation to the claim for sexual dysfunction Dr Lowy, sexual health physician provided a medico-legal report for Mr Wilson dated 16 August 2004. Dr Lowy concluded that “There is no evidence that he has damaged the erectile mechanism as he remains able to achieve a normal quality erection. However his libido… [has]... dropped.”. And “Mr Wilson’s condition has stabilised though at his age with decreasing sexual activity he may begin to develop erectile dysfunction.”. Dr Lowy opined that Mr Wilson’s prognosis “…depends on the outcome of the chronic pain condition.” and assesses Mr Wilson as having a 5% whole person impairment in respect of sexual dysfunction.
Dr Breslin, urologist, provided a medico-legal report for the Kennedys dated 26 April 2005. Dr Breslin concluded that Mr Wilson’s back pain caused some difficulty with sexual function and this occurred after an incident in 2003 when Mr Wilson tripped in his back yard. However, Dr Breslin concluded that there was no interference with sexual function and Mr Wilson had no whole person impairment of sexual organs.
Mr Wilson’s evidence
Mr Wilson did not give oral evidence. However Mr Wilson’s two written statements were in evidence. Mr Wilson’s statement dated 26 November 2003 provided evidence in relation to his claim for industrial deafness and right shoulder injury. In relation to the right shoulder injury, Mr Wilson stated that as a result of sustaining that injury in 1989 he received a lump sum payment. This injury prevented him from working until “2 months ago” and he was “…struggling a great deal with shoulder pain.” upon his return to shearing.
Mr Wilson’s supplementary statement is dated 26 July 2004. This statement provides specific evidence of injuries to his neck, back, right arm, left arm, right leg, left leg and sexual dysfunction. The statement contains a table rating his own assessment of his pain from 2001 to the date of the statement. Mr Wilson reported that he had no pain in his legs until April 2004 and this pain is continuing. He also reported that whilst the pain in his arms, neck and back decreased by April 2002 the pain again increased significantly in April 2004 and continues. Mr Wilson described aggravating his back pain following a fall at home in November 2003 and the subsequent improvement of this back pain, which returned to previous levels “within a couple of weeks” of the incident.
Mr Wilson concluded that as “a result of [his] last employment” he experiences difficulties walking, gardening, kneeling and sleeping. He suffers from aggravation of neck and back pain as a result of driving, walking up and down stairs, standing and stooping, and a decrease in sexual activity as a result of back pain and discomfort.
The Arbitrator’s Statement of Reasons
Following his consideration of the evidence outlined above the Arbitrator found at paragraph 28 of his Statement of Reasons that:
“The remaining injuries to the sexual organs, neck, right arm, left arm, back and right leg and left leg are injuries that can only be considered to be aggravations, exacerbations or accelerations of injuries commuted by way of agreement before the Compensation Court on 21 August 2001.”
In support of this finding the Arbitrator referred to the medical reports of Drs Berry and Vote. At paragraph 29 of the Statement of Reasons the Arbitrator noted that Dr Berry examined Mr Wilson and provided reports before and after the commutation settlement. The Arbitrator concluded that Dr Berry “...was in a position to highlight post-commutation aggravation. However, he does not do so. What Dr Berry does say is that the problems are of long standing, and makes some reference to non-work-related incidents.” The Arbitrator then found that Dr Berry did not provide a “convincing medical case for the Applicant to suggest that there has been an aggravation leading to further injury in the post-commutation period.”
The Arbitrator stated his reliance upon the evidence of Dr Vote who concluded that Mr Wilson’s employment with the Kennedys was of no significance as it was a short-term aggravation of an already established and well-documented problem and that aggravation had ceased.
The Arbitrator then found that Mr Wilson had failed to produce any evidence which distinguished a separate injury, “… be it a frank injury, aggravation, disease, or otherwise…”. In the absence of that evidence the Arbitrator found that the Kennedys were entitled to rely on the effects of the Commutation “…which was entered into to settle all claims with respect of the injuries described at the date of the agreement.” The Arbitrator noted that in the absence of appropriate medical evidence Mr Wilson may be suffering from “…nothing more than a continuation of symptoms for which he was compensated in 2001.”
Review of the Arbitrator’s decision
The claim brought pursuant to sections 4(b)(i) and 15 of the 1987 Act.
The Arbitrator’s reasons indicate that the Arbitrator considered the issue of aggravation and therefore applied section 16 of the 1987 Act only. However as described, Mr Wilson’s claim was brought pursuant to sections 15 and 16. In my view section 15 has direct application and it is necessary to set out the relevant sections of the 1987 Act and refer to the authority provided by the Court of Appeal in Crisp in order to review the Arbitrator’s decision.
The relevant sections of the 1987 Act provide:
“4 Definition of ‘injury’ (cf former s 6 (1))
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,”
“15 Diseases of gradual process—employer liable, date of injury etc
(cf former ss 7 (4), (4C), (5), 16 (1A))
(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process:
(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 to the nature of which the disease was due.
(2) Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any employment to the nature of which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.”
The Court of Appeal held in Crisp that it is necessary to establish three things in support of a claim for injury in accordance with sections 4(b)(i) and 15 of the 1987 Act. At page 494 the Court held that these three things were:
“…that the worker had ‘received’ a disease; that it was contracted by him in the course of employment; and that the employment was a contributing factor. The term ‘in the course of employment’ does not denote a causal relationship between the disease and the employment, but in light of the decided cases, the third matter, the employment as a contributing factor, does require a relationship of that kind.”
In applying the authority in Crisp the Arbitrator’s task was to make findings in respect of disease, the time when the disease was contracted and whether, at that time, the worker was in the course of employment as a shearer. Accordingly, the Arbitrator was required to consider the medical evidence describing Mr Wilson’s injury and apply that evidence to determine if Mr Wilson was suffering from a disease.
In my view, there was evidence of disease before the Arbitrator. Dr McCarthy’s clinical notes provide the first evidence of degeneration of Mr Wilson’s spine in December 2003 and the radiological reports of Dr Sequeira dated 22 January 2004 provide the basis upon which Dr Berry and Dr McCarthy found their diagnosis of disease.
Dr Sequeira’s description of the underlying pathology affecting Mr Wilson’s spine is similar to that described in Crisp at page 505. In Crisp the medical evidence concluded that it was relevant that Mr Crisp had been a shearer for over a quarter of a century at the time of his symptoms and the accumulation of stressors on Mr Crisp’s back caused collapse of the discs and arthritic changes in the facet joints which then caused narrowing of the spinal canal known as the disease ‘canal stenosis’. The Court of Appeal accepted that work as a shearer is or involves an accumulation of stressors on the back causing “canal stenosis” and the appellant’s case was one properly founded on an ‘industrial disease’ cause by years of shearing. That case was remitted for determination in accordance with sections 4(b)(i) and 15 of the 1987 Act in circumstances where the appellant had only briefly worked as a shearer with the respondent to the appeal.
Whilst the medical evidence in the present case does not describe “canal stenosis” it clearly describes collapse/herniation of discs and arthritic changes in facet joints caused, in the opinion of Drs Berry and McCarthy as a result of the stressors ‘involved’ in years of shearing. In my view, the medical evidence and the facts of the present case accord with those presented in Crisp.
In his report, dated 19 August 2004 Dr Berry noted that Mr Wilson’s back pain occurred when he returned to shearing. In Dr Berry’s opinion Mr Wilson suffered from “…. degenerative disc disease (emphasis added) in the neck and back. I would attribute the patient’s on-going symptoms directly to the nature and conditions of his work as a shearer.”
Additionally the report of Dr McCarthy, dated 29 July 2004 provided a diagnosis of disease. Dr McCarthy stated that Mr Wilson “… has chronic lumbar degenerative disease (emphasis added); and any work such as shearing is likely to exacerbate this.”
In my opinion, Dr Vote’s report also supported a finding of a disease process, that of “degenerative arthrosis” notwithstanding that he did not expressly refer to ‘disease’. In Dr Vote’s view Mr Wilson’s condition was well established. However Dr Vote does not provide evidence of when Mr Wilson was affected by degenerative arthritis.
In my view the medical evidence was sufficient to establish a claim brought pursuant to section 15 of the 1987 Act and I will now consider the Kennedy’s submissions regarding the effect of Mr Wilson’s earlier Commutation on such a claim.
The effect of the Commutation in 2001
The Kennedys submit that the Arbitrator was correct in confining himself to the application of section 16 of the 1987 Act as Mr Wilson’s Commutation extinguished his right to bring a claim against the Kennedys as the last employer for the purposes of section 15(1)(b) of the 1987 Act. Extinguishment can be described as cessation of rights and therefore a prohibition on asserting a right as opposed to an estoppel which provides a shield or a defence to a claim that has been made. The Kennedys did not assert that Mr Wilson is estopped from making the claim pursuant to section 15(1)(b). However the Commutation and its legal consequences were raised by both parties in these proceedings and in “the informal less technical environment of the Commission” it is not necessary to rely upon strict pleadings to define the issues between the parties providing rules of procedural fairness are observed, a party has notice of the case against it, and has been provided with an opportunity to respond (Far West Area Health Service v Radford [2003] NSWWCCPD 10). This has been the situation in this case, in respect of the estoppel issue.
In dealing with both extinguishment and estoppel I must consider the effect of the Commutation, being a ‘settlement’ involving the same body parts as claimed in this matter. A ‘settlement’ or the payment of compensation does not create any issue estoppel but can amount to an admission, (Ashenden v Stewarts & Lloyds (Australia) Pty Ltd [1972] 2 NSWLR 484).
The case of Rail Services Australia v Dimovski & Anor[2004] NSWCA 267 (‘Dimovski’) also provides authority in relation to the effect of a prior consent award and a later claim for the same body parts. In Dimovski the Court held that the task of the primary judge was to assess the extent of the worker’s current impairment following later injuries without legal constraints flowing from the earlier award and having made an assessment the primary judge was not obliged to find an explanation for the discrepancy.
Applying the authority of Dimovski the Arbitrator was entitled to consider any claim made after the date of the Commutation, 21 August 2001 and assess the claim on its merits and make a determination based on the evidence unrestrained by the Commutation made by the Court. Accordingly the earlier Commutation does not create an estoppel or extinguish Mr Wilson’s right to make a claim pursuant to sections 4(b)(i) and 15(1)(b) of the 1987 Act .
In respect of the injuries claimed to Mr Wilson’s body parts, the subject of the Commutation, it is also relevant that the Commutation finalised a claim made in 1999, against a different employer and claiming a different ‘disease’ to the present application. The earlier claim specified “carpel tunnel syndrome” as the disease affecting Mr Wilson’s right and left arm. However Mr Wilson also claimed degeneration in his neck in the earlier proceedings and his pre-existing injuries to the body parts the subject of this application may become relevant upon assessment by an Approved Medical Specialist.
In my view, evidence of Mr Wilson having developed a disease of gradual onset following his Commutation was before the Arbitrator and Mr Wilson’s right to make the claim had not been “extinguished” as a result of his earlier Commutation. The Arbitrator’s Statement of Reasons do not indicate that the Arbitrator applied section 15 of the 1987 Act to the medical evidence describing a disease of gradual process before him. Accordingly I find that the Arbitrator erred in not addressing the claim brought pursuant to section 15.
Redetermination of Mr Wilson’s application
Having found that the Arbitrator erred in failing to address the claim brought pursuant to section 15 of the 1987 Act I have the power in accordance with section 352(7) of the 1998 Act to substitute a new decision in place of the award made. In re-determining the application I will address the three elements set out in Crisp required to support the claim brought pursuant to sections 4(b)(i) and 15 of the 1987 Act.
Disease
The concept of disease and the pathological processes underpinning a ‘disease’ has been the subject of significant judicial consideration (Smith v Mann (1932) 47 CLR 426; Darling Island Stevedoring & Lighterage Co Ltd v Hussey (1959) 102 CLR 482, Commissioner of Railways v Bain (1965) 112 CLR 246 and Favelle Mort Ltd v Murray (1976) 133 CLR 580; Crisp, and Perry v Tanine Pty Ltd t/as Ermington Hotel & Others [1998] NSWCC 14 (‘Perry’)). The decision of Judge Burke in Perry is instructive in considering the legal assessment of a the medical term ‘disease’ his Honour quoted with approval the definition of disease in Blakiston’s Gould Medical Dictionary that a disease is a:
“failure of the adaptive mechanisms of an organism to counteract adequately the stimuli or stresses to which it is subject, resulting in a disturbance in function or structure of any part, or organ or system of the body. 2. A specific entity which is the sum total of numerous expressions of one or more pathological processes. The cause of a disease entity is represented by the cause of the basic pathological processes in combination with important secondary causative factors” (paragraph 47).
The pathological processes apparent in Mr Wilson’s back in January 2004 are described in the report of Dr Sequeira as set out. In applying the authority of Perry I find this radiological evidence to demonstrate a disease process which has resulted in a ‘disturbance’ of the ‘structure’ of Mr Wilson’s spine. I also rely on the evidence of Dr Berry who diagnosed Mr Wilson with degenerative disc disease in August 2004 and Dr McCarthy who concluded that Mr Wilson suffered from chronic lumbar degenerative disease in July 2004. Mr Wilson’s statement and the clinical history he provided to Dr Berry confirmed that he experienced pain in his back, neck, arms and legs. Dr Vote’s report also confirmed that Mr Wilson provided a history of chronic pain. In my view, the medical evidence supports a finding that Mr Wilson’s pain does not arise as a result of his earlier shoulder or left elbow injury rather the evidence supports a finding that Mr Wilson suffers from a degenerative disc disease affecting his neck and back with associated pain in both of his arms and legs.
Having found that the medical evidence is sufficient to establish that Mr Wilson suffers from a disease I am now required to address the remaining two issues described in Crisp; that the disease was contracted in the course of employment and that the employment was a contributing factor.
The disease contracted in the course of employment and employment was a contributing factor
The medical opinion of Dr Berry is unambiguous; Dr Berry attributes Mr Wilson’s disease directly to the nature and conditions of his employment as a shearer. Additionally the clinical notes of Dr McCarthy also support a finding that Mr Wilson’s work as a shearer contributed to his disease. Dr McCarthy’s notes record that Mr Wilson had returned to shearing and on 2 February 2004 Dr McCarthy advised Mr Wilson to decrease this heavy work.
Further the report of Dr Vote concluded that Mr Wilson “...returned to a type of work which was too heavy for him and has sustained a transient flare up of his arthritic problems specifically in relation to his lumbar spine and to a lesser extent his shoulder.” However, in Dr Vote’s opinion Mr Wilson’s “short term aggravation of an already established and well-documented problem…” had ceased at the date of his report.
Dr Vote failed to provide an opinion as to the origin of this ‘problem’. In the absence of a contrary medical opinion I am left with Dr Berry’s report. In my view, the medical report of Dr Berry is sufficient to establishes that Mr Wilson had contracted a ‘disease’ in the course of his employment as a shearer and after several years not working as a shearer he returned to that industry in the employ of the Kennedys. I find in accordance with section 4(b)(i) of the 1987 Act on the medical evidence of Dr Berry that Mr Wilson was suffering from degenerative disc disease which was contracted by him in the course of his employment and to which the employment was a contributing factor.
I also rely on the medical evidence of Dr McCarthy who noted no abnormalities in Mr Wilson’s lumbar spine in 1997 in finding, in accordance with section 15(1) of the 1987 Act that Mr Wilson’s degenerative disc disease was contracted by a gradual process. The reports of Drs Sequeira and Berry also support this finding.
Mr Wilson stated that he ceased work with the Kennedys on 30 April 2004 as a result of the increase in his levels of his back, neck arm and leg pain. Mr Wilson provided this same history to Drs Berry and Vote. I find the evidence sufficient to establish that it was upon Mr Wilson’s return to shearing that he experienced an increase in pain in his arms, legs and back as this work was “too heavy” for him. I find in accordance with section 15(1)(a)(i) of the Act that his incapacity arose when he ceased his employment with the Kennedys as a result of his back pain on 30 April 2004.
Having found in accordance with section 15 of the 1987 Act that Mr Wilson suffered an injury, being degenerative disc disease of gradual onset affecting his back and neck and giving rise to pain in both arms and both legs which arose in the course of his employment The remaining matter for consideration is Mr Wilson’s claim for sexual dysfunction.
Mr Wilson’s statement of 26 July 2004 concludes that he is unable to engage in sexual activity as frequently as he did prior to 2001 as the pain he experiences in his back is aggravated by sexual activity and this has also affected his libido.
Dr Lowy’s report supports a finding of sexual dysfunction. Dr Breslin opines that Mr Wilson has no assessable impairment of sexual functioning. However, Dr Breslin does acknowledge that Mr Wilson’s back pain caused some difficulty with sexual function. Dr Berry provides a clear history of Mr Wilson experiencing back pain. Having accepted the medical evidence of degenerative disc disease being demonstrated in January 2004 and associated back pain I find on balance that there is sufficient evidence before me to accept Mr Wilson’s claim of sexual dysfunction and accordingly his level of sexual dysfunction should also be assessed.
The last employer for the purposes of section 15(1)(b) of the 1987 Act
Section 15 of the 1987 Act operates as a deeming provision to fix a time. The application of this section has been the subject of considerable judicial consideration (Smith v Mann (1932) 47 CLR 426 at page 449). The provision does not operate to assign liability to an employer on the basis of true causation [see Cabramatta Motor Body Repairers (NSW) Pty Ltd v Steafan Raymond and Pegrin Pty Ltd [2006] NSWWCCPD 132].
A most helpful discussion on the operation of section 15 of the 1987 Act to ‘assign liability’ rather than to establish a causal connection with employment with the last employer is contained in the Court of Appeal decision in Grate Lace Pty Ltd t/as Grate LaceBricklaying Co v Theiss Watkins White (Constructions) Pty Ltd & others (1995) 12 NSWCCR 365 (‘Grate Lace’). That matter was first heard by a Commissioner of the Court and liability was found against the last employer, Theiss. On a review by Justice Manser that decision was reversed and liability was found against Grate Lace. Justice Kirby found that the mistake made by Manser CCJ who overturned the decision of the Commissioner was an “endeavour to return to the assignment of liability according to a notion of true causation”. Justice Kirby found at 369B:
“…that approach overlooked the semi-arbitrary but very practical purpose of section 15 of the 1987 Act. That section obliged the Court to do what Commissioner Grayson in the initial hearing did, i.e. fix Theiss Watkins (Constructions) Pty Ltd (Theiss) with liability, as the last employer. That employer was no florist shop, but another employer in the bricklaying industry in whose employ the worker was exposed to the allergen which, once again, triggered off his dermatitis. It was therefore an employer which fell within the terms of section 15(1)(b) of the 1987 Act. It was the employer by whom compensation was payable.”
Applying Grate Lace to this matter, I find that Mr Wilson returned to the shearing industry in the employ of the Kennedys and the medical evidence of Drs Vote, McCarthy and Berry established that shearing was too “heavy” an occupation for him giving rise to his incapacity on 30 April 2004. I find no evidence to refute Mr Wilson’s assertion contained in his statement dated 26 July 2004 that the Kennedys were his last employer and he ceased work with them as a result of his back pain on 30 April 2004. In accordance with section 15(1)(b) of the 1987 Act I find, on the basis of Mr Wilson’s statement and the medical reports of Dr Berry and Dr Vote that the Kennedys were Mr Wilson’s last employer in employment to the nature of which the disease was due.
Incapacity and the application of section 40 of the 1987 Act
The remaining issue for determination is the extent of Mr Wilson’s incapacity as it relates to his ability to earn. The transcript reveals that Counsel for Mr Wilson claimed total incapacity and in the alternative partial incapacity (pages 12 -15). Counsel for Mr Wilson did not refer to medical evidence in support of a finding of total incapacity.
Mr Wilson’s incapacity must be considered with reference to the medical evidence. Dr Berry concluded that Mr Wilson is permanently unfit for work as a shearer or in any other heavy manual occupation but would be fit for “lighter duties” and Mr Wilson’s prognosis remains guarded as he is still “symptomatic”. Dr Vote agreed that Mr Wilson is not fit to return to shearing but concluded that Mr Wilson is fit for part time and probably full time light to moderate work such as running a café. However any aggravation of his ‘problem’ had ceased. On the evidence, of Drs McCarthy and Berry I am satisfied that the symptoms of this disease are continuing and give rise to Mr Wilson’s current partial incapacity. In my view the reports of Drs Berry and Vote conclude that Mr Wilson is partially incapacitated and fit for ‘suitable employment’.
I refer to the submissions of Counsel for Mr Wilson in respect of Mr Wilson’s probable weekly earnings pre-injury and his ability to earn in suitable employment in applying section 40 of the 1987 Act and the five steps set out in Mitchell v Central West Health Service (1997) 14 NSW CCR 527. Counsel for Mr Wilson submitted that Mr Wilson would probably be earning $431.00 based on his earnings but for the injury. Counsel submitted that this amount acknowledged Mr Wilson’s “ pre-existing injury” for which he had been compensated (transcript page 13-14).
I have considered Mr Wilson’s statement of gross earnings and the Taxation/Wages Schedule prepared by St George Registration and Investigation Services dated 12 November 2003 and accept Counsel’s submission that Mr Wilson’s ability to earn but for the injury is $431.00 per week.
Turning to Mr Wilson’s earnings in ‘suitable employment’ I accept the reports of Drs Berry and Vote that Mr Wilson could be engaged in ‘light’ duties similar to those he previously undertook in running a café. On the evidence of Dr Berry, Mr Wilson could only undertake this employment on a part-time basis. In Dr Vote’s opinion Mr Wilson could “probably” undertake this work on a full time basis. In my opinion Dr Vote’s assessment of Mr Wilson’s working hours is qualified and accordingly I prefer the evidence of Dr Berry that Mr Wilson can only work on a part-time basis.
Considering the additional factors set out in section 43A of the 1987 Act I have regard to Mr Wilson’s age, he is now 59; his education, he left high school at age 15 and on the evidence he has not undertaken any additional training or any rehabilitation; his employment background, he has worked all his life as a shearer and for approximately 2-3 years assisted in the running of a café with his wife; and his place of residence, he resides outside Warren on a 40 acre farm. In assessing Mr Wilson’s ability to earn in ‘suitable employment’ I find his ability to be limited and confinded to ‘light’ duties such as light farming work and assisting in a café. Given that Mr Wilson resides outside Warren it is reasonable to conclude that the labour market reasonably accessible to him is restricted. Mr Wilson is further restricted in the class of work he can now compete. Further, considering his age and his work experience, it is likely that his ability to earn in some suitable employment will be further reduced by intermittency of employment. This is a valid factor to take into account in undertaking the calculation required by section 40(2)(b) (De Witte v Tawnay Pty Ltd trading as Country Coast Real Estate [2006] NSWWCCPD 109; Summerson v Alcan Australia Ltd (1994) 10 NSWCCR 571). Considering all of these matters I find Mr Wilson’s earning capacity to be $200.00 per week based on a part-time working week.
Subtracting $200.00 from $431.00 I arrive at the figure of $231.00 per week pursuant to section 40(2) of the 1987 Act.
Turning to the exercise of discretion in accordance with section 40(1) of the 1987 Act I am mindful that the ultimate purpose of the exercise is to place a monetary value on the diminution in the earning capacity of the worker which arises because of the injury (Australian Iron v Steel v Elliot (1966) 67 SR (NSW) 87; Malco Engineering v Ferreira (1994) 10 NSWLR 117). I accept Counsel’s submissions that Mr Wilson had a pre-existing injury and his ability to earn was reduced as a result of that injury. That pre-existing injury affected Mr Wilson’s arms, back and neck. I accept the evidence of Dr Berry and Mr Wilson that he could still undertake full time “light” work until 2003 and had been so engaged until the café he operated burnt down. On balance, the medical evidence concludes that it was not until his injury in 2004 that Mr Wilson was further restricted to part-time (emphasis added) “light” work. Therefore I accept that, as a result of his injury in 2004 Mr Wilson’s ability to earn in suitable employment was reduced from the full time hours he was able to work but for the injury to part-time hours. I also accept the medical evidence of Dr Berry that Mr Wilson’s prognosis remains guarded as he is still symptomatic. I consider the award to be proper given Mr Wilson’s incapacity and I see no other factors warranting the exercise of discretion to reduce the figure arrived at in accordance with section 40(2)(b) of the 1987 Act.
As a result of the injuries sustained by Mr Wilson in the employ of the Kennedys I find that he is partially incapacitated for work and entitled to an award of compensation pursuant to section 40 of the 1987 Act of $231.00 per week from 1 May 2004 and continuing. I find Mr Wilson is also entitled to an award in respect of the section 60 expenses claimed.
Conclusion
The powers of a Presidential Member to revoke a decision of an Arbitrator pursuant to section 352(7) of the 1998 Act are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error [see Allesch v Maunz (2000) 203 CLR 172].
I find that the Arbitrator erred in failing to apply section 15 of the 1987 Act.
DECISION
.
Paragraphs 3, 4 and 5 of the decision of the Arbitrator dated 21 June 2005 are revoked and the following decision is made in their place:
1. That the Respondent (Philip J Kennedy & Bronwyn M Kennedy t/as PJ & BM Kennedy) pay the Appellant (Robert Wilson) weekly compensation at the rate of $231.00 from 1 May 2004 to date and continuing under Section 40 of the Workers Compensation Act 1987.
2. That the matter be remitted to an Arbitrator for referral to an Approved Medical Specialists for assessment of the injuries to Mr Wilson’s neck, right arm, left arm, back, right leg, left leg and assessment of sexual dysfunction in accordance with the findings set out in this decision.
3. That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts.
4. Paragraphs 1, 2 and 6 of the Arbitrator’s decision are not the subject of this review and their status is confirmed.
COSTS
The Respondent to pay the Appellant’s costs of the appeal.
Elizabeth Tydd
Acting Deputy President
14 August 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ELIZABETH TYDD, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
14
0