Woolworths Limited v Geammal - [2011] NSWWCCPD 24

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Woolworths Limited v Geammal [2011] NSWWCCPD 24
APPELLANT:		Woolworths Limited
FIRST RESPONDENT:		Marisa Geammal
SECOND RESPONDENT:		QBE Insurance (Australia) Limited
APPELLANT’S INSURER:		Self Insurer
SECOND RESPONDENT’S INSURER:		QBE Insurance (Australia) Limited
FILE NUMBER:		A1-6649/10
ARBITRATOR:	Mr Michael McGrowdie
DATE OF ARBITRATOR’S DECISION:		28 January 2011
DATE OF APPEAL DECISION:		3 May 2011
SUBJECT MATTER OF DECISION:		Section 4(b)(ii) of the Workers Compensation Act 1987; aggravation of disease; s 16(1)(a)(i) of the Workers Compensation Act 1987; deemed date of injury; s 16(1)(b) of the Workers Compensation Act 1987; employer liable to pay compensation
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Bartier Perry Lawyers
First Respondent:		MRM Lawyers
Second Respondent:		Curwoods Lawyers
ORDERS MADE ON APPEAL:		The orders made by the Arbitrator as found in the Certificate of Determination dated 28 January 2011, as amended, are confirmed. The appellant is to pay Ms Geammal’s costs of this appeal. No order as to the second respondent’s costs of this appeal

BACKGROUND TO THE APPEAL

Ms Marisa Geammal, the worker, was successful in her claim brought in the Commission against the appellant heard by Arbitrator McGrowdie in January 2011. This appeal is brought by Woolworths Limited, in its interests as self insurer. Ms Geammal commenced employment with the appellant in 1992 and remained until, by reason of incapacity, she ceased duties on 18 May 2009. That incapacity was alleged to have resulted from back injury received on 29 July 1998; the nature and conditions of employment between 29 July 1998 and 18 May 2009, and/or as a result of aggravation of a disease.
Ms Geammal’s claim in respect of workers compensation benefits was denied by the appellant and by its earlier insurers, CGU Workers Compensation (NSW) Limited and QBE Workers Compensation (NSW) Limited. The appellant, who has been registered as a self insurer since 1 November 2000, challenges a finding made by the Arbitrator concerning the date of Ms Geammal’s injury. That finding had the result that the appellant was solely liable to pay the award made by the Arbitrator. An order concerning that liability appears in the Certificate of Determination dated 28 January 2011.
Given the dispute which existed as between the self insured appellant and its earlier insurers concerning liability, leave was granted by the Arbitrator to both the appellant and QBE as “lead insurer” to appear at the arbitration separately represented. The lead insurer has been joined as a respondent to this appeal.
There is no challenge made on this appeal to Ms Geammal’s entitlement to compensation as quantified by the Arbitrator. Since cessation of work in 2009 she has undergone no less than three surgical procedures to her back, the last being lumbar spinal fusion. Her incapacity is ongoing.
The Arbitrator’s findings concerning the deemed date of injury followed his application of s 16 of the Workers Compensation Act 1987 (the 1987 Act) to the facts as found. As noted earlier, it is that finding which is the subject of challenge by the appellant. The Arbitrator’s reasoning which led to his conclusion concerning the deemed date of injury is addressed more fully below.

THE DECISION UNDER REVIEW

The Certificate of Determination dated 28 January 2011, which was subsequently amended, records the Arbitrator’s orders as follows:
“1.     Award for the applicant in respect of weekly payments at the rate of
(a)$723.62 per week (current weekly wage rate for the first twenty-six weeks of incapacity) from 19 May 2009 (the applicant’s last day of work being on 18 May 2009) to 13 November 2009 pursuant to section 36;
(b)$396.10 per week from 18 November 2009 to 31 March 2010 pursuant to section 37;
(c)$403.70 per week from 1 April 2010 to 30 May 2010 pursuant to section 37;
(d)$538.90 per week from 1 May 2010 to 28 October 2010 pursuant to section 38; and
(e)$409.10 per week from 29 October 2010 to date and continuing pursuant to section 37.
2.     The respondent is to pay the applicant’s medical expenses pursuant to section 60.
3.     The respondent is to pay the applicant’s costs and I certify the matter as complex and allow an uplift of 30% for all parties. Further, the costs of QBE Insurance should include an additional uplift of 15% for being lead agent.
4.     The above award for the payment of weekly compensation, the order for the payment of the applicant’s medical expenses and the order for the payment of the applicant’s costs are to be satisfied by the respondent as self insurer.”

ISSUE IN DISPUTE

The issue in dispute in the appeal is whether the Arbitrator erred in determining that the deemed date of injury received by Ms Geammal was 18 May 2009.

ON THE PAPERS REVIEW

Section 354(6) of the Workplace Injury Management and Workers CompensationAct (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 Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

LEAVE

Ms Geammal has submitted that, given there is no challenge to the quantum of compensation payable pursuant to the award, the monetary threshold fixed by s 352(3) of the 1998 Act is not met.
The appellant’s challenge concerns the Arbitrator’s finding as to liability to pay the award monies. In such circumstances it is clear that the “amount of compensation at issue on appeal” meets those thresholds fixed by s 352(3).
Both Ms Geammal and the second respondent submit that the time requirements fixed concerning commencement of an appeal, as provided by s 352(4), have not been met.
The Commission’s record reveals that an application seeking leave to appeal against the decision of the Arbitrator was registered electronically with the registry on 25 February 2011. Following a direction from the Registrar the appellant forwarded an amended application, again electronically, on 1 March 2011. That amended application cited QBE Workers Compensation (NSW) Limited (as lead agent) as second respondent. The grounds relied upon, the relief sought and the arguments advanced in support of the appeal were in no way amended. In the circumstances it is clear that the appeal was commenced within time as prescribed by s 352(4).
The thresholds as to quantum and time having been met, and having regard to the matters raised in submissions, I grant leave to appeal.

THE ARBITRAL PROCEEDINGS

The documentary evidence before the Commission was noted at [15] of the Arbitrator’s Statement of Reasons (Reasons). No oral evidence was taken at the hearing before the Arbitrator. The parties were each represented by counsel. As noted, the defence raised by the two insurers, CGU and QBE, was conducted by QBE as “lead agent”. Submissions put on behalf of each party were recorded and a transcript (T) of that recording has been produced and made available to the parties.
At the hearing leave was granted to Ms Geammal to amend her application. Following that amendment the date of injury appeared in Part 4 of the Application as being:
“(i) 29.07.1998
(ii) (a) nature and conditions of employment between 29.7.98 and 18.5.2009
(b)further, or in the alternative, the allegations in (i) and (ii) as above constitute the aggravation of a disease pursuant to s 16 of the 1997 Act and s 4(b)(ii) of the 1998 [sic, 1987] Act.”
The amendment permitted by the Arbitrator described the injury as “back injury”. The description as to how the injury occurred appeared in Part 4 of the Application as follows:
“(i) Whilst pulling pallets off shelf and stock filling
(ii)Nature and conditions of employment.”
The documentary evidence before the Arbitrator was voluminous. Given the limited nature of the appellant’s challenge to the Arbitrator’s findings and award, it is proposed to summarise only that evidence which is relevant to arguments raised on this appeal.

Ms Geammal’s evidence

Ms Geammal, in a statement dated 19 November 2009, gave evidence concerning the occurrence of alleged injury in July 1998. It is to be noted, as did the Arbitrator in the course of his Reasons, that Ms Geammal refers to an incident occurring on 30 July 1998, whereas the evidence as a whole establishes that the correct date was, as particularised in the amended application, 29 July 1998. It was stated:
“26.On or about the 30^th July 1998 [sic] I was filling stock when I got pain in my back.
27.I hoped that the pain would go away with rest. That night I found that the pain did not leave, so the next day I decided to go and see my general practitioner, Dr Hiew at Erina. Dr Hiew diagnosed me as suffering with a lower back strain and certified me unfit for work until 7 August 1998.
28. The pain eased with rest, but never went away.
29.Since this date I have always suffered from pain in my lower back and sometimes the pain would radiate to other parts of my back. The pain was always bearable and I managed it with rest and heat packs. I always had a mild ache in my back and thought it was normal, considering the work I was performing…”.
A copy of Ms Geammal’s compensation claim form dated 31 July 1998 is in evidence. That document includes detail of injury occurring on 29 July 1998 between 9 and 10 am whilst “pulling out pallets”. Injury was described as “Lower back pain”.
Ms Geammal’s statement includes detail of the occurrence of injury to her neck and shoulder. Disability which arose by reason of those injuries led to a variation of duties as described by her in the statement which is in evidence. Those injuries are not relied upon as being causative of relevant incapacity in these proceedings, and the detail appearing in the statement need not be summarised. Notwithstanding the changes to her duties, Ms Geammal was required to perform shop-floor duties which caused pain and discomfort in her back.
Ms Geammal states that in October 2002 her duties were altered to those of a Systems Operator. Her duties were described at [23] of her statement. Those duties included arduous tasks including handling the laundry, which involved a lot of bending, and filling of the coke machine which involved handling cartons of soft drink. She states (at [57] of her statement):
“My duties often caused me to experience flare ups in my neck/shoulder and back symptoms. Often I did not report them I just tried to get on with things. It was only when the pain became unbearable that I would consult Dr Hiew or report the problem to my employer”.
Ms Geammal states (at [61] of her statement) that for many years she had noticed that the dull pain in her lower back was “gradually getting worse”, she began to experience pain in her left buttock and leg down to her ankle. That pain became worse as she performed the manual duties which she described in her statement. In mid to late 2007 a CT scan of her lumbar spine was arranged by Dr Hiew. Her back and leg pain persisted and by late 2008, and into early 2009, that pain reached a point “where I could no longer handle it”.
In September 2008 a further CT scan was arranged and Ms Geammal was referred to Dr Mark Coughlan. Ms Geammal was absent from work for a short period in February 2009 when she underwent injections administered by Dr Coughlan. The symptoms persisted and Dr Coughlan recommended surgery. On 19 May 2009 she underwent micro-discectomy. She did not experience much relief following this procedure and continued to experience severe back and leg pain. An MRI scan was arranged and conducted on 11 August 2009. Ms Geammal underwent revision surgery on 30 October 2009.
She has not worked since 18 May 2009 at which time she ceased work to undergo Dr Coughlan’s surgical treatment.

Clinical notes of Dr Hiew

The clinical notes of Dr Hiew, general practitioner, record Ms Geammal reporting back pain during a consultation on 31 July 1998. The notes record that that pain had been experienced for one day and that Ms Geammal could not remember any particular “event/occasion”. It is also recorded “noticed [?] it during sitting in a break”. Also recorded was “worse end of work”. Dr Hiew recorded tenderness and mild spasm of the paravertable muscle. A WorkCover certificate was issued with respect to the period “30/7 to 2/8/98”.
Dr Hiew’s notes do not record any further complaint made by Ms Geammal concerning her back until a consultation on 19 August 2006. The notes contain an entry “Back: muscle spasm”. The next relevant entry in the clinical notes is dated 16 April 2007 where it is noted that Ms Geammal had suffered from low back pain for the past four days. It was described as dull, constant and there is a notation “both legs”.
There are copies of eight WorkCover certificates issued by Dr Hiew, the first dated 9 September 2009 and the last dated 29 July 2010. Each of those certificates notes the occurrence of a “lifting injury on 30/7/1998” and the diagnosis is noted as “L4/5 disc prolapse”.

Dr Coughlan’s evidence

There are seven short reports of Dr Coughlan, neurosurgeon, addressed to either Dr Hiew or the appellant, the first dated 26 February 2009 and the last dated 3 February 2010. Those reports do not contain a detailed history, but it is noted in the first of those reports that Ms Geammal had “severe left leg pain over the course of the past few weeks”. A report dated 15 October 2009 notes that Ms Geammal had “sustained a work related to [sic] injury to her lumbar spine and initially had a herniated disc at L4/5 eccentric to the left hand side”. Dr Coughlan proceeded to describe the ongoing symptoms following the first surgical procedure and stated: “as this was related to her original injury which occurred whilst at work, I am of the opinion that any further surgery should be reasonably covered by her original injury”.

Dr Higgs’s evidence

Dr Robin JED Higgs, orthopaedic consultant, was qualified by Ms Geammal’s solicitors to provide a report for the purposes of this litigation. His report, tendered by QBE, dated 2 November 2009 is in evidence. The history as recorded by Dr Higgs included a notation of injury on or about 30 July 1998 on which date Ms Geammal “had been performing arduous work duties that had been concerned with the pushing of heavy trolleys, the pulling of pallets, and the ‘filling’ of stock”. During the afternoon of that day Ms Geammal experienced an episode of low back pain. It is also recorded that the low back pain “did not improve in spite of a prolonged period of physiotherapy treatment”. Dr Higgs recorded detail of other injuries received by Ms Geammal which are not relevant to these proceedings. It is also noted that she continued to suffer from low back pain and it became necessary for Dr Hiew to refer her to Dr Coughlan. Under the heading “diagnosis and opinion” Dr Higgs stated:
“The injury to the low back was suffered by Mrs Geammal when she was at work on 30/07/98. The injury incident that occurred on or about 30/07/98 is, in my opinion, consistent with being causal for Mrs Geammal to suffer her L4/5 intervertebral disc protrusion.”

Dr Sage’s evidence

Dr John Sage, orthopaedic surgeon, was qualified on behalf of Ms Geammal to provide a medical report for the purposes of this litigation. She elected to rely upon this report in her case, rather than Dr Higgs’s report, given the restriction concerning the number of forensic medical reports a party may rely upon in proceedings before the Commission (cl 43(3) of the now repealed Workers Compensation Regulation 2003). Dr Sage recorded a history that Ms Geammal developed low back pain at the end of July 1998. Dr Sage observed that the documentation he had been provided:
“indicates she was sitting at that time, but had been doing a fair bit of packing of course before. This took about five days to settle, however, she then said it never went away, though reports by Dr King stated it settled when he saw her in 2000”.
Dr Sage, following a summary of further history relating to injuries which are not relevant to the claim and his observations on examination of Ms Geammal, stated in relation to her lumbar spine:
“I note Dr Higgs opinion with regard to the original injury as being highly significant, however, that does not fit in with symptoms settling after about five days and the reports in 2000, which seem to indicate there was no significant problem.
However, the nature of her duties as a filler may be the important factor, which she did for approximately a ten year period. This is likely to have exaggerated degenerative changes of the disc, which she is prone to, and probably more importantly exaggerating the associated accessory movement”.

Dr King’s evidence

Dr King treated Ms Geammal in respect of her neck injury. There are four reports prepared by Dr King the first dated 17 November 2000 and the last dated 29 April 2002. In the last of those reports Dr King recorded a past medical history which included:
“In 1998 she had an episode of lower back pain at work. She was able to do suitable duties for two weeks before returning to pre-injury duties. She recalls having a few days off during that time”.

Dr Wije-Tunga’s evidence

Dr L Wije-Tunga, orthopaedic surgeon, was qualified by the appellant to provide a medico-legal report for the purposes of this litigation. An examination of Ms Geammal was conducted in October 2009 and a report dated 1 October 2009 is in evidence.
Dr Wije-Tunga recorded history of Ms Geammal experiencing back pain whilst working as a Duty Manager/Night Filler on 30 July 1998. It is noted that, following a consultation with her general practitioner, she was given one day off work. It is further noted that she returned to normal duties on 2 August 1998 following which she continued to do normal work until 1 March 2000 when she reported that she hurt her left shoulder.
Dr Wije-Tunga also records that on 13 October 2007 she had significant back pain for which she consulted her general practitioner. The report contains a summary of the radiological studies which were conducted thereafter. The initial surgery to her back was noted and it was also noted that repeat surgery had been scheduled for 29 October 2009.
Following a summary of findings made on examination, Dr Wije-Tunga addressed particular questions which had been put to him by the appellant. That practitioner was unable to confirm the mechanism of injury that had resulted in surgery on 18 May 2009. Dr Wije-Tunga noted that Ms Geammal “ascribes this to lifting of packages weighing approximately 15 kgs, pulling of heavy pallets into the shop at night and filling of the shelves with goods including bottles of water. No definite injury was described”. Dr Wije-Tunga was expressly questioned concerning his view as to whether or not the nature and conditions of Ms Geammal’s employment were contributing factors to her pain and symptoms to which he replied:
“Given her period of employment of 17 years performing duties that involved heavy pulling of pallets, carrying boxes that weighed 15kg and stacking shelves, her employment may be a minor contributing factor to her pain and symptoms.”

Submissions before the Arbitrator

It was earlier noted (at [4] above) that there is no challenge made on this appeal to Ms Geammal’s entitlement to an award. Ms Geammal’s submissions seek to support the Arbitrator’s findings and have much in common with those matters raised by the second respondent. In the circumstances it is proposed to summarise only those arguments advanced at the hearing on behalf of the insurers and the self insurer concerning liability.

The second respondent’s submissions

The primary submission put on behalf of the second respondent was that the evidence does not establish that there was an “identifiable injury” or “frank injury” received by Ms Geammal in July 1998. It was argued that what was experienced by Ms Geammal on that occasion was manifestation of symptoms by reason of an aggravation of an underlying disease. It was put in argument that the nature of her duties thereafter caused further aggravation of that disease which ultimately led to incapacity and the need for surgery. Acceptance of that argument would lead to a conclusion that liability in respect of any award would fall at the feet of the self insurer.
An alternative argument advanced on behalf of the second respondent was that, regardless of the characterisation of the events in July 1998, the physical consequences were transient. In those circumstances it was again argued that there would be no liability borne by the second respondent in respect of the incapacity which followed the significant symptoms experienced in 2009 which ultimately gave rise to a need for surgical intervention.

The appellant’s submissions

The argument advanced on behalf of the appellant is recorded between T47 and T52. Particular emphasis was placed upon Ms Geammal’s evidence as found in her statement and the claim for compensation dated 31 July 1998 referred to at [20] above. It was put that the evidence plainly suggests that Ms Geammal suffered a frank injury on that occasion. As to the consequences of that injury, reliance was placed upon the evidence of Dr Higgs, Dr Coughlan and the medical certificates issued by Dr Hiew. It was argued that those practitioners attribute the disc herniation and the need for surgery to the frank injury which is said to have occurred in 1998. Acceptance of that evidence would have the result, it was argued, that liability in respect of any award would be that of the insurer as at the date of the 1998 injury.
The appellant’s solicitor is recorded at T56 responding to matters raised by the Arbitrator concerning the relevance or otherwise of the decision of the Court of Appeal in Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648 (Dimovski). The Arbitrator invited submissions upon the assumption, for the purposes of argument, that the incapacity involved not only a frank injury in 1998 but also aggravation of a disease by reason of nature and conditions of employment following that incident. The appellant’s solicitor accepted that there could, in such circumstances, be an apportionment of liability.
Counsel appearing on behalf of the second respondent, in reply, argued that there would only be a “Dimovski - type apportionment” in circumstances where there is a finding of a frank injury in 1998. It was the second respondent’s argument that there was no proof of such injury, and that apportionment would not arise for the Commission’s consideration.

The Arbitrator’s decision

The Arbitrator, following a detailed summary of the evidence, accepted the accuracy of Ms Geammal’s history that in July 1998 she performed her usual arduous work duties and that later in the afternoon she noticed back pain. The Arbitrator also found that she did not begin to suffer back symptoms of any real significance after 1998, until 2006. It was the Arbitrator’s conclusion that he did not accept the evidence of Dr Higgs that Ms Geammal’s back problems with which she presented in 2002 and the L4/5 intervertebral disc lesion resulted from an injury at work in July 1998.
The Arbitrator found (at [55] of Reasons) that the medical evidence established that she “was suffering from significant degenerative changes in her lumbar spine”. The Arbitrator reached the conclusion “that the various duties performed to May 2009 by [Ms Geammal] aggravated these underlying degenerative changes such that she required operative treatment” (at [56] of Reasons).
Concerning the relevance of events on 29 July 1998 the Arbitrator found (at [57] of Reasons):
“On the overall evidence [Ms Geammal] did not suffer a frank injury on 29 July 1998 but rather developed symptoms in the back because of her degenerative back condition and because of her duties and the effect of these on her degenerative back, and that these symptoms first appeared on that day”.
The Arbitrator proceeded to find that Ms Geammal’s incapacity from 19 May 2009 resulted from the aggravation of a degenerative disease of the spine by the work performed to 18 May 2009.
The Arbitrator proceeded to consider the provisions of s 16 of the 1987 Act and made reference to the decision of Burke J in Perry v Tanine Pty Ltd t/as Ermington Hotel (1998) 16 NSWCCR 253 where his Honour addressed the question of aggravation of a disease being carpal tunnel syndrome. The Arbitrator drew an analogy between the aggravation of that condition as noted by Burke J and aggravation by reason of repeated trauma to Ms Geammal’s degenerative spine. A finding was made that the aggravation in the present matter continued “until [Ms Geammal] ceased work on 18 May 2009 and section 16 operates so as to deem the date of injury when the applicant ceased work on 18 May 2009”.
The Arbitrator proceeded to re-state that Ms Geammal “did not suffer a frank injury on 29 July 1998” and concluded that, in those circumstances, “there isn’t any liability to apportion as [Ms Geammal] was simply performing her ordinary duties on that day”. In so concluding reliance was placed by the Arbitrator upon that which was stated by the Court of Appeal in the matter of Dimovski. A further finding was made that the work performed by Ms Geammal up to 18 May 2009 was a substantial contributing factor to the aggravation of the disease (at [65] of Reasons).
The Arbitrator found that liability to meet the terms of the award subsequently made was that of the appellant as self insurer. A finding and order to that effect was made by the Arbitrator (at [68] of Reasons and [4] of the Certificate of Determination, as amended, dated 28 January 2011).

SUBMISSIONS, DISCUSSION AND FINDINGS

It must be said that the appellant’s submissions made in support of this appeal lack clarity. The challenge concerns the Arbitrator’s finding as to the deemed date of injury. It is suggested by the appellant in submissions that the Arbitrator’s finding as to the deemed date of injury was “not explicitly stated”. That assertion is incorrect. The relevant finding is to be found at [63] of Reasons:
“Such aggravation continued until the applicant ceased work on 18 May 2009 and section 16 operates so as to deem the date of injury when the applicant ceased work on 18 May 2009 (Sunbuster Sportswear Pty Ltd v Way [2006] NSWWCCPD 247, 28 September 2006, Acting Deputy President Bill Roche (as he then was))”.
It seems to be now accepted by the appellant that the injury received is one to which the provisions of s 4(b)(ii) apply and that the provisions of s 16 are relevant to the resolution of the question as to date of injury. It is the appellant’s contention that the Arbitrator has erred in his application of that last mentioned section which provides:
“16 Aggravation etc of diseases – employer liable, date of injury etc
(cf former ss 7 (4A), (5), 16 (1A))
(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.
(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 by the worker in any such employment shall be liable to make to the employer by whom compensation is payable such contribution as, in default of agreement, may be determined by the Commission.
(2A) The Commission is to determine the contributions that a particular employer is liable to make on the basis of the following formula, or on such other basis as the Commission considers just and equitable in the special circumstances of the case:
C=TxA/B
where:
C    is the contribution to be calculated for the particular employer concerned,
T    is the amount of compensation to which the employer is required to contribute,
A    is the total period of employment of the worker with the employer during the 12 month period concerned, in employment that has been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration concerned.
B    is the total period of employment of the worker with all employers during the 12 month period concerned, in employment that has been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration concerned.
(3)In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 Part 3.
(4) This section does not apply to an injury to which 17 applies.”
Having regard to the manner in which argument is presented by the appellant it seems that Ms Geammal correctly states the position in the course of submissions attached to the Reply where it is put (at [10]):
“The Appellant does not challenge the finding of the Arbitrator at paragraph 59 of the Certificate of Determination [sic, Reasons] (as amended) that the ‘incapacity for work from 19 May 2009 is as a result of the aggravation by the work she performed to 18 May 2009’”.
It may be seen that the appellant’s argument advanced on this appeal is different to that which was relied upon in the course of argument before the Arbitrator which I have attempted to summarise at [40] and [41] above. At the hearing, the appellant’s fundamental proposition was that, on the evidence, Ms Geammal’s incapacity in and after May 2009 was causally related to a frank injury which had occurred on 29 July 1998.
At the hearing the appellant, as earlier noted at [41] accepted, as an alternative outcome, that a finding of frank injury in 1998 and subsequent injury by way of aggravation up to 2009 could give rise to a need to apportion liability.
The respondents to this appeal have not taken objection to the apparent shift in the manner that argument is advanced on the appeal. Both Ms Geammal and the insurers accept the correctness of the Arbitrator’s application of s 16 to the facts as found. They each argue that the decision of the Court of Appeal in P and O BerkeleyChallenge Pty Ltd v Alfonso (2000) 49 NSWLR 481 (Alfonso) provides guidance as to the proper construction of that section, in particular as to the meaning of the term “incapacity” as it appears in s 16(1)(a)(i).
The appellant appears to assert that Ms Geammal was incapacitated in 1998 as a result of injury. That assertion, upon the assumption that such was intended, is correct. The submission appears at [2.9] as follows :
“There is uncontested evidence with respect to the period of incapacity in 1998 as a consequence that [sic] the Arbitrator found was an aggravation of underlying disease process”.
The appellant contends that, given proof of that period of incapacity, a finding “ought” to have been made that the deemed date of injury was 29 July 1998: s 16(1)(a)(i).
The argument advanced by the appellant is similar to that which was advanced on behalf of the appellant insurer in Alfonso. In that matter the worker had been employed by two successive employers each of whom had, at relevant times, various insurers. The worker’s injury was one being aggravation of a disease within the meaning of s 4(b)(ii) and to which s 16 had application. The claim made was in respect of incapacity commencing on a date in 1996. There had been earlier periods of incapacity in 1993 and 1995.
In the course of his judgment in Alfonso Priestley JA (with whom Clarke JA agreed) considered the scheme of the 1987 Act concerning an employer’s liability in respect of incapacity suffered by a worker. His Honour expressed the view that the “kind of incapacity” which is addressed by s 34 as found in Division 2 of the 1987 Act “is the kind for which a worker establishes entitlement to weekly payments of compensation”. He proceeded to state (at [29]):
“As the particular purpose of both s 15 and s 16 is to assist in some aspects of making orders for weekly payments of compensation under Div 2 of Pt 3, it seems clear that incapacity has the same meaning in the two sections as it does in Div 2.”
Priestley JA noted in the course of his reasoning that his conclusion was “substantially” the same as was reached by Sheller JA in GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187 (GIO) concerning the similar terms of s 15. It was there stated by Sheller JA (at 196):
“As Mahony A-P pointed out in Crisp v Chapman (1994) 10 NSWCCR 493 at 495, section 15 assumes injury has occurred and provides the means of determining when the injury was deemed to have happened. In principle, it remains for the worker or dependant to prove an injury within section 4. It is at the point when the worker or dependant has proved an injury that section 15 operates. In the case of the worker’s claim, the injury, being a disease of such a nature as to be contracted by a gradual process, is deemed to have happened at the time of incapacity. I have no doubt that is a reference to the incapacity for which compensation is claimed.”
In the present matter the incapacity for which compensation is claimed, and to which Ms Geammal has established her entitlement to be paid, concerns entitlement to weekly compensation commencing on 19 May 2009. That incapacity commenced on 18 May 2009. It is on that date, upon application of s 16(1)(a)(i), the injury is deemed to have happened.
It may be seen that I agree with the Arbitrator’s conclusion concerning the deemed date of injury. I also agree with the Arbitrator’s finding that the liability in respect of the award is that of the appellant as self insurer. Compensation is payable by the employer in whose employment the worker is or who last employed the worker in employment that was a substantial contributing factor to the aggravation: s 16(1)(b). As was stated by Sheller JA in GIO (at 196):
“That means the employer in whose employment the worker is at the time the injury is deemed to have happened, or who last employed the worker before the injury is deemed to have happened; Fisher v Hebburn Ltd (1960) 105 CLR 188 at 196 and 199.”
The appellant’s arguments had no regard to the Arbitrator’s acceptance of evidence concerning aggravation of a disease process continuing up until Ms Geammal’s cessation of work in 2009 and must be rejected. The appeal is dismissed and the orders made by the Arbitrator as found in the Certificate of Determination dated 28 January 2011, as amended, are confirmed.

COSTS

The appellant is to pay Ms Geammal’s costs of this appeal. The second respondent (QBE Workers Compensation (NSW) Limited as lead agent) seeks an order for costs of the appeal as against the appellant. Having regard to the issues raised on appeal and in the exercise of the discretion granted by the Acts as to awarding of costs, I conclude that it is appropriate that no costs order be made concerning the second respondent’s costs of this appeal.

Kevin O’Grady

Deputy President
3 May 2011

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

ASSOCIATE