XITMS Pty Limited Formerly Known as Ion Transmissions Pty Limited v Castles
[2007] NSWWCCPD 222
•7 November 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:XITMS Pty Limited formerly known as Ion Transmissions Pty Limited v Castles [2007] NSWWCCPD 222
APPELLANT: XITMS Pty Limited formerly known as Ion Transmissions Pty Limited
RESPONDENT: Anthony John Castles
INSURER:CGU Workers Compensation (NSW) Limited.
FILE NUMBER: WCC18242-06
DATE OF ARBITRATOR’S DECISION: 28 June 2007
DATE OF APPEAL DECISION: 7 November 2007
SUBJECT MATTER OF DECISION: Lump sum compensation; sections 66 and 67 of the Workers Compensation Act 1987; whether section 66 losses can be aggregated to reach section 67 threshold; correct method of assessment.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Turks Legal
Respondent: Nevin Lenne & Gross.
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 28
June 2007 is confirmed.
2.The Appellant is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
1.On 25 July 2007 XITMS Pty Limited formerly known as Ion Transmissions Pty Limited (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of an Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision of a Commission Arbitrator dated 28 June 2007.
2.The Respondent to the Appeal is Anthony John Castles (‘the Respondent/Mr Castles’).
3.Mr Castles was born on 18 September 1952 and is presently 55 years of age.
4.He was employed by the Appellant as a production worker/machine operator. His duties involved testing of gear boxes. This activity required the manual dragging and lifting of gear boxes into the testing machine from the conveyer belt.
5.On 24 July 2003, Mr Castles was forcefully pulling on a gear box which was suspended on a gantry when he suffered an injury to his right shoulder. He was off work for a period of time and subsequently resumed on selected duties with the Appellant until March 2005.
6.In a statement dated 15 September 2006, Mr Castles claimed:
“As a result of the nature and conditions of my employment with Ion Transmissions [between 24 July 2003 and 9 March 2005], that involved lifting and pushing and pulling activities, including the use of a scrubbing machine, using predominately my left arm, I suffered further injury to my left shoulder on or about 30 November 2004. This was due to me predominately using my left shoulder because I was compensating for the injury to my right shoulder which occurred on 24 July 2003.”
7.There was no dispute between the parties that Mr Castles suffered an injury to his right shoulder arising out of or in the course of his employment on 24 July 2003.
8.There was however a dispute in relation to the claimed injury to the left shoulder. In earlier proceedings in the Commission number WCC14741-05, between the same parties, an Arbitrator determined as follows:
“I found that on 30 November 2004 the Applicant, Anthony Castles, received an injury to his left shoulder arising out of or in the course of his employment with Ion Transmission Pty Limited. His employment was a substantial contributing factor to that injury.”
9.Unfortunately, there is no sound recording of the reasons given nor any transcript in respect of those proceedings, such that it is not possible to determine what, if any, other relevant findings were made at that time.
10.Mr Castles has been in receipt of weekly benefits compensation since ceasing his employ with the Appellant in March 2005.
11.On 15 December 2006 Mr Castles filed an ‘Application to Resolve a Dispute’ in the Commission seeking lump sum compensation and/or “threshold for work injury damages where the degree of whole person impairment is in dispute”.
12.On 12 January 2007 the Registrar issued an advice to the parties of a referral to an ‘Approved Medical Specialist’ (‘AMS’) which specified two body parts, namely the left and right arms, to be assessed and two dates of injury. The Appellant claims that the referral was made without a Teleconference being held beforehand and that “the Registrar’s referral to the AMS specified two dates of injury and two body parts, consistent with the ‘Application to Resolve a Dispute.’
13.The claim was referred to an AMS for assessment. Dr Peter Isbister, AMS, issued a Medical Assessment Certificate (‘MAC’) on 8 February 2007 in which he certified Mr Castles as having 9% whole person impairment relating to the right upper extremity as a result of injury on 24 July 2003 and a 9% whole person impairment relating to the left upper extremity as a result of injury on 30 November 2004. On combing the two assessments, Dr Isbister concluded that Mr Castles suffered a 17% whole person impairment.
14.The Appellant filed an ‘Application to Appeal the Decision of the AMS’ on 12 February 2007. On or about 4 April 2007 Mr Castles filed a ‘Notice of Opposition to Appeal Against Decision of an Approved Medical Specialist’.
15.On 23 April 2007 the Registrar of the Commission issued a decision, the relevant paragraphs being as follows:
“(6)Insofar as the combined assessment reflects the AMS’s opinion on causation (as contended by the Respondent), it is not a matter that is conclusively presumed to be correct (section 326 of the [1998] Act and accordingly, it is not appellable under section 327 of the Act (327(2) of the Act). Issues of causation are to be determined by an Arbitrator.
(7)As the Registrar is not satisfied that a ground of appeal as specified in section 327(3) of the Act has been made out, the appeal is not to proceed. The matter is to be referred to an Arbitrator.”
16.The parties attended a conciliation/arbitration hearing on 29 May 2007. Both parties made oral submissions recorded in a transcript of that date.
17.In short, the Arbitrator determined that the AMS had correctly aggregated the impairments as they were as a consequence of the same incident and accordingly, ordered the Respondent to pay lump sum compensation pursuant to section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).
18.It is from this decision that the Appellant seeks leave to appeal.
19.In a ‘Notice of Opposition to Appeal’ filed on 27 September 2007, Mr Castles submits that the Arbitrator’s decision “… was in accordance with the law …” and ought to be confirmed.
THE DECISION UNDER REVIEW
20.The ‘Certificate of Determination’ dated 28 June 2007 records the Arbitrator’s determination as follows:
“1.That the Respondent pay the Applicant, as lump sum compensation of $12,500.00 under section 67 in respect of pain and suffering of 25% of a most extreme case.
2.That the Respondent pay the Applicant’s costs as agreed or assessed”.
LEAVE TO APPEAL
21.Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 Act (‘the 1998 Act’).
22.The amount at issue on appeal satisfies the threshold requirements in section 352(2) of the 1998 Act, and the appeal was filed in time in compliance with section 352(4) of that Act.
23.Leave to appeal is granted
ON THE PAPERS REVIEW
24.Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
25.Both parties submit that the matter is suitable for a determination ‘on the papers’. Having regard to Practice Direction No’s 1 and 6, the documents that are before me, and the detailed submissions by both parties on appeal, 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
THE ISSUES IN DISPUTE
26.The Appellant submits that:
“The Arbitrator found that the impairments resulting from two injuries should be compensated as one whole person impairment arising from the same incident, despite their being a finding of two separate incidents and two separate injuries”.
27.The Appellant has cited three grounds of appeal as follows:
·“The Arbitrator failed to provide adequate reasons for the decision.
·The Arbitrator did not adequately consider the submissions of the parties regarding the factual circumstances of the worker’s injuries and the medical evidence.
·The Arbitrator found that the worker sustained an injury to the right upper extremity on 24 July 2003 and a further injury to the left upper extremity on 30 November 2004 but added the impairments resulting from those injuries together, contrary to section [sic] of the Act and the WorkCover Guide to the Evaluation of Permanent Impairment.”
28.In summary, the Appellant submits:
“The main dispute in this matter is whether or not the worker could add the impairment resulting from the 2003 injury to the impairment resulting from the 2004 injury to exceed the threshold for work injury damages and section 67”.
29.The Appellant argues that Mr Castles has suffered two losses from two separate and distinct injuries and therefore has no entitlement to compensation under section 67 because neither loss satisfies the section 67(2) threshold.
30.Conversely, Mr Castles claims that the injury to his left shoulder arose as a consequence of the first injury to his right shoulder such that his “losses” resulted from the one incident, and should be aggregated in order for him to meet the threshold to recover compensation under section 67 of the 1987 Act.
THE REVIEW PROCESS
31.The nature of a review by a Presidential Member on appeal has been succinctly summarised by Deputy President Roche in Graham Healy t/as Hunter Glass Toronto v Santarelli [2007] NSWWCCPD 188 where he said as follows:
22.“The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
23. The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
24. This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
25. Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).”
32.Recently, the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA249 confirmed this approach. The Appellant had questioned “… whether a tribunal, when considering what action it should take to reverse findings of fact should remit the matter to the primary decision-maker unless it is satisfied that there could not be a different result”. Spigelman CJ said as follows [paras 18-30]:
“… I do not accept … that a Presidential member is relevantly constrained when reviewing an Arbitrator’s decision on such a finding of fact … The concept of a review on the merits is wider than the concept of an appeal in a judicial context … a Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contents.”
33.These principles must be considered in determining the matter before me.
THE SUBMISSIONS, EVIDENCE AND FINDINGS
The Arbitrator’s Findings and Reasons
34. As the Arbitrator rightly pointed out:
“(20)My task in this decision is to decide if the threshold which would entitle the
Applicant to an award under section 67 of the 1987 Act has been reached.”
35. His reasons were then set out as follows:
“(22) In this case, if there had been two separate injuries then the whole person
impairment attributed to each injury would not be sufficient to entitle the Applicant to an entitlement but if combined, then entitlement would arise.
(22) Between these two parties, there had been prior proceedings (WCC14741-
05). In her ‘Statement of Reasons’ the Arbitrator said ‘I found that on 30 November 2004 the Applicant, Anthony Castles, received an injury to his left shoulder arising out of or in the course of his employment with Ion Transmission Pty Limited. His employment was a substantial contributing factor to that injury.’ She says that there is a sound recording of the reasons given. Unfortunately there is no transcript of the proceedings filed in this matter and I am not aware if any findings were made that the second injury arose out of or as a result of the first injury.
(23) In order to establish that it is necessary to look at the medical evidence. As
the medical evidence is set out above [set out in paragraphs 9 to 13] I clearly think that it does show that the second injury arose as a result of the first. The second injury would not have occurred but for the first. This is common ground to Dr Slater, Dr Brearley and the Approved Medical Specialist Dr Isbister.
(24) Two injuries were claimed and properly referred to the ‘Approved Medical
Specialist’ as such. The Approved Medical Specialist has, in my view, correctly aggregated the impairments as he is required to do by section 322(3) of the 1998 Act as the injuries ‘arose out of’ the same incident.”
36. The Arbitrator then went on to consider relevant authorities in his assessment of Mr
Castle’s entitlement pursuant to section 67 of the 1987 Act before entering an award in his favour as set out in paragraph 20 above.
The Relevant Legislation
37. At the time of Mr Castle’s injuries, the relevant provision of the 1987 Act were as follows:
“Section 65
(1) For the purposes of this Division, the degree of permanent impairment that
results from an injury is to be assessed as provided by this section …
(2)If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this division.
Section 66
(1) A worker who receives an injury that results in permanent impairment is
entitled to receive from the worker’s employer compensation for that permanent impairment as provided for in this section.
Section 67
(1)A worker who received an injury that results in a degree of permanent
impairment of 10% or more is entitled to receive from the worker’s employer as compensation for pain and suffering resulting from the permanent impairment an amount not exceeding $50,000.00. Pain and suffering compensation is in addition to any other compensation under this Act.”
38. The notation under section 65 of the 1987 Act states as follows:
“The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together …”
39. Section 322 of the 1998 Act is in the following terms:
“(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3)Impairments that result from more than one injury arising out of the
same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.”
The Relevant Authorities
40.Both parties in their submissions have relied on a number of authorities in support of their respective arguments.
41.The Appellant makes the following submission:
“The case of Pickersgill v Freight Bases Pty Limited [1983] 3 NSWLR 117 dealt with the meaning of ‘results from’ as used in section 9 of the Workers Compensation Act 1927 in the context of whether or not an incapacity for work ‘results from the injury’. In Pickersgill it was suggested that the words were not equivalent to ‘is caused by’ or ‘is causally connected with’ but connoted a relationship of causation between injury and incapacity which was more proximate. However, in the decision of Woolworths Limited v Allen [1988] 4 NSWCCR 99 the Court of Appeal criticised a simplistic application of Pickersgill and stated that ‘however, the decision in Pickersgill v Freight Bases Pty Limited holds only that the expression ‘results from’ in the Workers Compensation Act does not cover a condition which merely predisposes the worker or makes him more vulnerable to later injury … In my view, it would not be taken as deciding anything more.’”
42. In other words, in the Appellant’s submission, any suggestion that the first injury to the
right arm in July 2003 in some way “predisposed” the Respondent to further injury did not satisfy the ‘results from’ test as set out in Pickersgill to which it referred.
43. However, it must be said that the authorities to which the Appellant refers dealt principally
with the issue of ‘incapacity’.
44. The Appellant has also made reference to the decision of Judge Neilson of the former
Compensation Court in Sidiropoulos v Able Placements Pty Limited [1998] 16 NSWCCR 123 stating that His Honour:
“… allowed lump sum compensation for back impairment and loss of use of the right leg arising from two injuries in August 1995 and December 1995. However that decision was on the basis that the two injuries affected the same part of the body and ‘had a cumulative effect’ resulting in one incapacity”.
45. The Appellant has also referred to another decision of Judge Neilson, namely Carroll v
Forgacs Floating Dockyards [2000] NSWCCR 1 which dealt with two separate hearing loss assessments which the worker attempted to aggregate to pass the section 67 threshold. The Appellant makes the following submission:
“Judge Neilson commented regarding the Court of Appeal decision in Glebe Rowing Club Pty Limited v Pride (dealing with an apportionment of liability for a back injury sustained in two different employments): ‘Strictly in my view this case is only authority as to the correct interpretation of the first instance of judgment of Burke J. However, it makes the point that one cannot agglomerate two or more losses so as to entitle the worker to pass the section 67 threshold … in the current case there are two losses – an original 13.1% loss of binaural hearing and a 4.1% further loss of binaural hearing …
A worker as a result of one injury may develop lateral epicondylitis of his dominant arm which leads to a 10% loss of the efficient use of the arm and, as a result of a second injury, also may develop a rotator cuff problem of the shoulder which increases the loss of the efficient use of the arms 20%. One could say that there is a 20% loss of use of the arm resulting from the two injuries, but there is not. There are two separate pathologies caused by two different events, so there are two separate injuries.”
46. In summary, the Appellant submits:
“Clearly that comment applies to the current case of Mr Castles who suffered two injuries to different parts of his body on two occasions each in different circumstances. As in the case of Pickersgill, even though the worker’s first injury may have meant that he favoured one arm and placed a greater strain on another arm there was a separate injury to a separate part of the body caused by separate circumstances. The Arbitrator should not have added the impairment resulting from these two injuries together. This was not a case such as Sidiropoulous where there were two injuries causing one pathology (back impairment)”.
47. The application of the provisions of sections 65, 66 and 67 and the authorities relating
thereto were considered at length by Deputy President Roche in Richardson v Warrie Grazing Pty Limited [2006] NSWWCCPD 159 (‘Richardson’). He discussed in some detail the decision in Glebe Rowing Club Pty Limited v Pride NSWCA 6 December 1995 (‘Pride’) (unreported). DP Roche noted that in the case before him, as in this case, the Appellant had relied on Pride to support the argument that the Respondent worker had suffered two losses from two separate and distinct injuries and therefore had no entitlement to compensation under section 67 because neither loss met the section 67(2) threshold.
48. Deputy President Roche noted that: “At first consideration that argument has some
appeal. However, on a more detailed analysis I do not believe it is correct in the circumstances of the present case.”
49. In Richardson, the worker suffered an injury on 6 October 2000 when a piece of wood
penetrated his work boot causing a significant wound. The wound became ulcerated causing the worker to walk on the lateral side of the foot. He continued to walk in this manner until a second injury in July 2001. On that occasion, a lamb fell onto his right foot causing an inversion injury to his right ankle. This incident caused his foot to again become inflamed requiring medical treatment. He continued to suffer significant restrictions in his right ankle and leg as a result of this condition.
50. At the hearing before the Arbitrator, the Arbitrator accepted the employer’s submission that
the worker had suffered two losses to his right leg of 10% each, and therefore had no entitlement to compensation for pain and suffering.
51. Deputy President Roche revoked the Arbitrator’s decision and awarded Mr Richardson
$15,000.00 in respect of the 20% loss of use of the right leg at or above the knee, which award entitled him to compensation under section 67 for pain and suffering.
52. Deputy President Roche made the following observations:
“38.Pride has been considered in a number of cases by judges of the Compensation Court of NSW. In Sidiropoulos v Able Placements Pty Ltd (1998) 16 NSWCCR 123 (‘Sidiropoulos’) Judge Neilson noted that the strict ratio decidendi in Pride is the interpretation of the first instance factual findings by Burke J (Sidiropoulos at 127). A similar view has been expressed by Judge Bishop in Scanlon v Powercoal Pty Ltd (2001) 22 NSWCCR 82 and by Judge Armitage in Pickles v Staples Waste Removals Pty Ltd (2000) 20 NSWCCR 729 at 747 (‘Pickles’).
39. In Sidiropoulos the worker suffered two injuries to his back with two employers. Judge Neilson found that the injuries had a cumulative effect resulting in the worker having an 18% impairment of his back and a 9% loss of use of his left leg at or above the knee. That is, the two injuries caused an impairment to the back and a consequential or secondary loss of use of the left leg at or above the knee. There was no separate injury to the leg. Therefore, there was effectively only one impairment or loss. As a result the worker was entitled to compensation under section 67.
40. In Pickles the worker suffered three discrete injuries to his left shoulder with two employers over several years. The worker accepted a settlement of his claim for his first two injuries with an award for 16% loss of use of his left arm at or above the elbow plus compensation under section 67. He later brought a claim for additional lump sum compensation after his third shoulder injury May 1999. At the hearing before Armitage J he was found to have a 30% loss of use of his left arm at or above the elbow (that is, one loss) as a result of his three injuries. As such he was entitled to additional lump sum compensation.
41. The Respondent Employer also relies on the Court of Appeal decision in Rail Services Australia v Dimovski & anor [2004] NSWCA 267 (‘Dimovski’). In that case the worker injured his left knee working for the first employer prior to 1 July 1996. In October 1996 he settled his claim for his left knee for a 25% loss of use of the left leg at or above the knee under section 66. On 28 May 1998 he injured his back and left knee whilst working for his second employer. As a result of the May 1998 injury he began to favour his left leg and suffered an overuse injury to his right leg on or after March 1999. He claimed lump sum compensation under sections 66 and 67 from both employers. He recovered no further compensation for his left leg injury but did recover compensation in respect of his back and right leg injuries. When the back impairment was combined with the right leg loss the section 67(2) threshold was satisfied and he was therefore awarded compensation for pain and suffering under that section. On appeal it was held that the trial judge was correct to aggregate the impairment of the back with the loss of use of the right leg to get over the section 67(2) threshold because both the impairment to the back and the loss of use of the right leg had been found to have resulted from the “same injury”, namely, the injury on 28 May 1998.
42. One of the questions on appeal in Dimovski was: was the finding that the right leg loss resulted from the left knee injury of May 1998 open to the trial Judge as a matter of law? Applying Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 the court held that it was. I see nothing in the Court of Appeal’s decision that assists the Respondent Employer in the present matter. In Dimovski the court was considering the words “or 2 or more of any such losses as the result of the same injury” in section 67(1). In other words: could the impairment to the back be added to the loss of use of right leg to get over the section 67(2) threshold. The court answered that question in the affirmative since the loss of use of the leg and the impairment to the back both resulted from the same injury. If the loss and the impairment had resulted from separate injuries they could not have been aggregated. In my view there is nothing in their Honour’s reasons that would deny compensation to Mr Richardson.
43. In the present case the question is whether a worker’s injuries have resulted in one loss or one impairment (as was found to be the case in Sidiropoulos and Pickles), or two or more losses or impairments (as Judge Burke was held to have found in Pride). If a worker has only one loss or impairment resulting from multiple injuries it is appropriate to look at the cumulative effect of those injuries to determine the worker’s section 66 entitlements. If that entitlement meets the section 67(2) threshold the worker is entitled to compensation for pain and suffering even though his loss has resulted from more than one injury. Whether a worker has suffered one loss or two will be a question of fact to be determined on the evidence in each case.”
The Respondent’s Submissions
53.In the Respondent’s submission, the use of the words “results from an injury” in section 65(1) of the 1987 Act “… is merely a question of causation”. Further, in the Respondent’s submission, the use of the words “… arising out the same incident …” refers to “… a causal connection between the said incidents”.
54.The Respondent has referred to the decision in Bushby & Anor v Morris & Ors [1980] 1 NSWLR 81 quoting (at page 82) as follows:
“This is because the issue in a case such as the present does not turn upon the problem of construction of s.9(1) of the Act but upon the application of ordinary legal concepts of causation.”
55.The Respondent quotes from page 88 in the following terms:
“There is no doubt about the ordinary natural meaning of the words ‘results from’. The issue in the appeal does not turn upon any problem in the construction of s.9(1) but upon the application of ordinary legal concepts of causation…”
56.The Respondent makes the following submission in relation to this decision:
“The common law concept of causation in tort and that in Workers Compensation are the same as set out at page 87(19)(D):
‘It is well established in common law contexts that an injury or incapacity may be attributable to more than one cause, in the legal sense, operating concurrently. If any authority be required for that proposition, it is sufficient to refer to Baker v Willoughby, particularly the speech of Lord Reed (1a) where it is to be observed also that he equiparated the legal view of causation in tort to that in the field of workmen’s compensation. Their Lordships are of the clear opinion that there is indeed no difference between the two, subject to the qualification that in a claim for workers’ compensation it is unnecessary to prove that the incapacity was the natural and probable consequence of the injury. The question of foreseeability does not arise. It is sufficient that the incapacity ‘results’ from the injury by a chain of legal causation unbroken by any novus actus interveniens’”.
57.In the Respondent’s submission, the evidence supports the proposition that the second injury in 2004 was “causally related” to the injury in 2003.
58.The Respondent points out:
“Pickersgill adopts the reasoning in Bushby v Morris and was effectively determined on a factual basis. As set out at page 124F:
‘The evidence, I think shows that the worker became incapacitated from the effects upon his back of the injury of January 1979; this was a separate and distinctive event from the injury he suffered in 1966; That the injury of 1966 may well have made it more likely that the later injury would be incapacitating … but that the injury of 1966 and that of January 1979 were none the less separate and distinct events’”.
59.In the Respondent’s submission, “the factual situation in here is entirely different”.
60.The Respondent makes this submission:
“The concept of favouring of one limb causing injury in another is well known in the Compensation Court as well as the Common Law Courts.
In Medcalf v Perry (2) Macksville Hospital v Medcalf [2000] NSWCA 230, this once again reaffirms the common law principles of causation applicable to Compensation Courts action [36].
The Court of Appeal sets out in detail [41] the decision in Baker v Willoughby and repeats in [42] (19), last line; ‘It is sufficient that the incapacity “results” from the injury by a chain of legal causation unbroken by any novus actus intervenienes’”.
61.The Respondent has also relied upon the Court of Appeal decision in Rail Services Australia v Dimovski & Anor [2004] NSWCA 267 (‘Dimovski’).
62.In that case, the worker injured his left knee and back in May 1998. He subsequently began to favour his right leg and as a result suffered an overuse injury in or about March 1999. In proceedings before the former Compensation Court, he was awarded section 66 entitlements for loss of use of the right leg. On appeal, the Court of Appeal stated that: “The awards for the back and the right leg were the result of the same injury within s.67 and the worker was entitled to retain his award under that section: Sidirpoulos v Able Placements Pty Limited (1998) 16 NSWCCR 123 approved”.
63.As Handley JA said in Dimovski:
“She [the trial judge] then found that ‘as a result of the further injury to his left leg’ the worker began to favour that leg and as a result developed systems in his right leg. This finding supported the award for the right leg. The Judge followed the majority decision of this court in Colliar v Bulley (2000) 19NSWCCR 302 …”
64.His Honour went on as follows (para 31):
“In s.67(1) the words ‘same injury’ do not refer to the pathology in the worker’s body, because the section permits the aggregation of two or more losses which result from the same injury and each loss will reflect its own pathology. The ‘same injury’ can only refer to injury in the sense of the injurious event, to borrow the language of Neilson CCJ in Lyons [para 27]. It is important to note, as Windeyer J said in the High Court that in the present enquiry ‘the court is concerned with genesis rather than revelation’. See Lyons at 428. In this case the injurious event occurred on 28 May during employment with the Appellant. The only question could be whether the injury to the right knee was ‘a result of this injury’”.
65.His Honour found that the findings by the Trial Judge were supported by the evidence, and went on to state (para 34):
“The fact that nine or ten months intervened in this case before pathology became evident in the worker’s right leg does not exclude a finding of fact that it was as a result of the injury to the left. For the same reason, the intervening use by the worker of both legs, his conscious or unconscious decision to favour his left, and the pre-existing pathology in that leg do not, as a matter of law, invalidate her Honour’s finding that the pathology in the right leg was as a result of the frank injury to left on 28 May 1998.”
66.In Dimovski Handley JA quoted at length from the decision of the Court of Appeal in Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452 (‘Bates’). In that case, the widow of a deceased worker claimed compensation. In 1981 the worker had suffered a work related injury to his back which resulted in prolonged pain and other symptoms eventually leading to his death due to myocardial infarction. The trial judge found that death had resulted from the original injury and all its consequences.
67.The appeal was dismissed. The court held as follows:
“(1)The phrase ‘results from’ means ‘to arise as a consequence … to end or conclude in a specified manner’.
(2)Whether death or incapacity ‘results from’ a relevant work injury is a question of fact. The importation of notions of proximate cause, by the use of the phrase ‘results from’, is not now accepted. By the same token the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain and due regard must be paid to the statutory formula by asking the question whether the disputed incapacity or death ‘resulted from’ the worker injury which is impugned.”
It is noted that the decision in Pickersgill was not followed.
The Evidence
68.My principal task then is to determine whether the evidence supported the Arbitrator’s ultimate findings in line with the authorities to which I have referred. As Handley JA in Dimovski pointed out, quoting from Kirby P in Bates, (para 33):
“… It has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
69.A similar approach was adopted by Neilson J in Waugh v Newcastle Mater Misericordiae Hospital [1996] 13 NSWCCR 598 where he noted that it was appropriate to consider whether a subsequent injury could be said to arise as a “…direct consequence of the initial compensable injury.”
70.The Appellant, quite rightly in my view, points out that the Arbitrator’s statement that (paragraph 24) “the second injury would not have occurred but for the first. This is common ground to Dr Slater, Dr Brierley and the ‘Approved Medical Specialist’ Dr Isbister” was not correct.
71.Moreover, as the Appellant points out:
“In any event, the ‘but for’ test is not appropriate to determine whether or not the second injury ‘arose out of the first incident’. See March v E & M H Stramare Pty Limited [1991] 171CLR 506.”
72.In that case, the High Court accepted that the “but for” test should not become the exclusive test of causation in negligence cases (per Mason CJ). His Honour stated (para 22):
“The ‘but for’ test gives rise to a well-known difficulty in cases where there are two or more acts or events which would each be sufficient to bring about the plaintiff’s injury. The application of the test ‘gives the result, contrary to commonsense, that neither is a cause’ … in truth, the application of the test proves to be either inadequate or troublesome in various situations in which there are multiple acts or events leading to the plaintiff’s injury … the cases demonstrate the lesson of experience, namely, that the test, applied as an exclusive criterion of causation, yields unacceptable results and that the results which it yields must be tempered by the making of valued judgments and the infusion of policy considerations …”
73.I accept the Appellant’s submissions in this regard however, in my view, the Arbitrator’s statement was more an issue of inappropriate phraseology or semantics. The real issue was whether or not, as the Arbitrator pointed out earlier in paragraph 24, “… the second injury arose as a result of the first”.
74.Turning to the evidence, I accept the Appellant’s submission that certainly Dr Isbister did not specifically state that the Respondent’s left shoulder symptoms occurred “but for” the first injury. All Dr Isbister noted was this: “On 30/11/04 he reports his left shoulder suffered similar problems because even on light duties he had been using his left shoulder more than previously.”
75.Dr Slater, qualified on behalf of the Appellant, stated in his report of 28 August 2006:
“In October 2004 Mr Castles felt pain in the left shoulder whilst on modified duties. He was using his left arm in this occupation at a scrubbing machine. He was driving the scrubber and repeatedly lifting buckets of water and detergents.”
76.Dr Slater diagnosed “bilateral supra-spinatus tears” stating that “the history is consistent with the injury.” Dr Slater had obtained the history of the Respondent having injured his right shoulder in an incident on 24 July 2003.
77.Dr Brearley saw the Respondent at the request of his solicitors on 1 June 2006. He had available to him reports of Dr Andrew Milliken dated 6 October 2005 and 18 April 2006, and a report of a physiotherapist, Mark Hilton, dated 30 September 2005.
78.Dr Brearley obtained this history:
“In about October 2004 he began to feel pain in the left shoulder while he was doing the so-called modified duties. In fact at that time, he was having to do a lot of work using the left arm as he was not able to use the right arm fully. Some of the duties on the scrubbing machine did include driving the scrubber and repeatedly lifting buckets of water and detergents. In driving the machine, he had to use the left hand only.”
79.Dr Brearley concluded that:
“The first accident occurred on 24 July 2003 … clearly the tear of his rotator cuff occurred because of the heavy work which he was doing. The injury to his left shoulder occurred a year or more later and it was almost certainly due to the excessive strain he was putting on the left shoulder as he was unable to use his right arm fully. The repeated minor trauma to his left shoulder occasioned by his overuse no doubt led to increasing degeneration and finally to a complete tear of the supra-spinatus portion of the rotator cuff.
Thus in the case of both shoulders his employment has been a significant contributing factor to the injury occurring and to his present position.”
80.The Arbitrator had before him a report of Mr Mark Hilton, physiotherapist. In the report of 17 May 2006 he stated:
“Anthony presented with right sided neck and shoulder pain on 6 August 2003. This pain had been present for two weeks following repetitive over head work … On 10 September 2003, and at more regular intervals during December, Tony started to experience the same soreness on the left side due to compensation of the right. MRI later revealed that Tony had suffered bilateral supra-spinatous tears.”
81.The report from Dr Andrew Miliken dated 18 April 2006 shed no light on the issue at hand.
82.In his statement dated 15 September 2006, the Respondent said as follows:
“From 24 July 2003 until 9 March 2005 I continued to work with Ion Transmissions Pty Limited performing suitable duties. As a result of the nature and conditions of my employment with Ion Transmissions during the abovementioned period, that involved lifting and pushing and pulling activities, including use of a scrubbing machine, using predominately my left arm, I suffered further injury to my left shoulder on or about 30 November 2004. This was due to me predominantly using my left shoulder because I was compensating for the injury to my right shoulder, which occurred on 24 July 2003.”
83.It seems to me that there were possibly two ‘causes’ of the Respondent’s injury to the left shoulder, firstly, either as a result of the first injury to his right arm, or secondly, as a result of the nature and conditions of his employment with the Appellant.
84.As the Arbitrator rightly pointed out, the Arbitrator’s finding in matter number WCC14741-05 was simply a finding as to injury arising out of or in the course of employment with the Appellant, and was silent on the question as to whether the injury to the left shoulder arose as a consequence of the first right shoulder injury.
85.Thus there is no finding by the first Arbitrator which would create a binding estoppel on the issue before me.
86.As I said earlier, whether the injury to the left shoulder could be said to “result from” the earlier injury to the right shoulder is a question of fact. My task on review is to determine whether any errors of law, fact or discretion had been made by the Arbitrator. If there is evidence upon which a primary finding of fact could be based, and that evidence is accepted, it is not open to challenge except in limited circumstances. (See “Crown Glass & Aluminium Pty Limited v Ibrahim [2005] NSWCA 195).”
87.As Spiegelman CJ said in State Transit Authority of NSW v Fritzy Chemler [2007] NSWCA 249, I must decide “… what is the true and correct view”.
88.Like DP Roche in Richardson, I consider that there is ‘some appeal’ in many of the Appellant’s submissions, particularly in circumstances where there have, in effect, been two separate ‘findings’ of injury. However, adopting the “commonsense” approach in Bates, and in line with the decision in Dimovski, I am satisfied that the Arbitrator’s ultimate conclusion that “… the second injury arose as a result of the first” was supported by the evidence before him, notwithstanding the Arbitrator’s statement that “the second injury would not have occurred but for the first”.
89.I note that the Respondent is right arm dominant, and his statement as to the circumstances surrounding the injury to his left shoulder is clearly supported in the opinions of Dr Brearley and Mr Hilton.
90.As a consequence, the Arbitrator’s conclusion that the AMS “… correctly aggregated the impairments as he is required to do by section 322(3) of the 1998 Act as the injuries ‘arose out of the same incident’” was correct in the circumstances of this particular case.
The Adequacy of Reasons Issue
91.The Appellant submits:
“The reasons offered by the Arbitrator are inadequate, in that he has not properly dealt with the submissions made by either party with regard to the case law”.
92.The Appellant then makes reference to a number of authorities referred to by the parties during the Arbitration hearing, copies of which were provided to the Arbitrator. The parties’ submissions on the authorities are contained at length in the transcript. At paragraph 14 of the ‘Statement of Reasons’ the Arbitrator noted the oral submissions stating, for example, “the Applicant’s counsel took me through a number of cases and those cases will appear in the transcript but in summary, he says that the certificate must stand if I make a factual finding that the injury to the Applicant’s left arm resulted from the injury to his right arm”.
93.At paragraph 15, the Arbitrator stated:
“The Respondent’s counsel on the other hand submitted that the cases referred to by the Applicant dealt only with the injuries [sic] compensable or not. He points out that separate procedures were attributable to the right and left shoulders and that I am not entitled to aggregate these. He said that there were two frank injuries to two different parts of the body with two different dates of injury. He says that to qualify under section 67, the loss must flow from the same injury”.
94.It is now well established that an Arbitrator need not set out lengthy written reasons to comply with the Act and the Rules. (See Liverpool City Council v Trovato [2004] NSWWCCPD 15).
95.Nonetheless, reasons must adequately disclose the basis of an Arbitrator’s findings on material questions of fact. As McColl JA said in Hevi-Lift (PNG) Limited v Etherington [2005] NSWCA 42:
“The primary judge must state generally and briefly the grounds which have led him or her to conclusions concerning disputed factual questions and to list the findings on the principal contested issues. Although it is not necessary that the Judge refer to all the evidence, ‘where nothing exists but an assertion of facts on differentiated evidence the judicial obligation has not been discharged’: Soulemezis, at 259, per Kirby P”.
96.In the present case, the issue before the Arbitrator was limited to the question of whether or not the AMS correctly aggregated the impairments found in accordance with section 322(3) of the 1998 Act. The Arbitrator in my view clearly identified the submissions made by both parties. Those submissions were clearly and succinctly summarised by the Arbitrator and were in accordance with the transcript.
97.As the Arbitrator rightly pointed out, the answer lay substantially in the medical evidence. The evidence of Dr Brearley and Mr Hilton was consistent with the statement made by the Respondent. Dr Isbister and Dr Slater took a similar history as to the circumstances leading to the onset of symptoms in the left shoulder and, as I pointed out earlier, Dr Slater referred to those symptoms as being consequent upon “the injury”. Doctors Slater, Brearley and Isbister all “aggregated” the section 66 assessments to provide a “total whole person impairment”.
98.I am satisfied that, in the circumstances of this particular case, the Arbitrator’s reasons were adequate in the context of the task before him.
99.It is timely to note the comments of Deputy President Fleming as she then was in M&S Shipman Pty Limited v Matters [2003] NSWWCCPD 19 (at 84):
“To succeed on the ground of ‘inadequate reasons’ it will be necessary for the Appellant to demonstrate not only that the reasons are inadequate but that the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application.”
100.I am not persuaded that the Appellant has demonstrated that the Arbitrator failed to exercise his statutory duty to “… fairly and lawfully determine the application.”
CONCLUSION
101.Whilst I have accepted that there is considerable merit in many of the Appellant’s submissions, on balance, I am of the view that the Arbitrator’s findings and reasons reflected the “true and correct view” of the evidence before him and the issue he was required to determine.
102.Whilst I accept that the Arbitrator’s statement that it was “common ground” to the various doctors that “the second injury would not have occurred but for the first” was not substantially correct, it was to a degree a view expressed by those doctors at least to the extent that “compensating” for the injury to the right shoulder led to the development of symptoms in the left shoulder.
103.The Arbitrator’s statement in relation to the “but for” test was inappropriate in line with the authorities to which the Appellant has referred, but in my view, it was an issue of semantics rather than an error of law, and not such that his decision ought be set aside and remitted to another Arbitrator.
104.In short, the evidence supported a causal link between the injury to the right shoulder and the injury to the left shoulder, and that the loss in the left arm resulted from the injury to the right arm in July 2003.
105.This was a question of fact, and there was evidence to support the Arbitrator’s ultimate conclusion.
DECISION
106.The decision of the Arbitrator dated 28 June 2007 is confirmed.
COSTS
107.The Appellant is to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
7 November 2007
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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