John Baker Contracting Pty Ltd v Rowe

[2008] NSWWCCPD 20

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:John Baker Contracting Pty Ltd v Rowe [2008] NSWWCCPD 20

APPELLANT:  John Baker Contracting Pty Ltd

RESPONDENT:  Danny John Rowe

INSURER:CGU Workers Compensation (NSW) Limited

FILE NUMBER:  WCC8955-06

DATE OF ARBITRATOR’S DECISION:          26 September 2007

DATE OF APPEAL DECISION:  18 February 2008

SUBJECT MATTER OF DECISION: Assessment of claim for additional lump sum compensation; Schedule 6 Part 18C of the Workers Compensation Act 1987; effect of Medical Assessment Certificates; correct method of calculation of further loss/impairment

PRESIDENTIAL MEMBER:  Deputy President Bill Roche

HEARING:On the papers

REPRESENTATION:  Appellant:      Lyons Barnett Kennedy

Respondent:   McCabe Partners

ORDERS MADE ON APPEAL:  Paragraphs 1(a), (b) and (c) and paragraph two of the Arbitrator’s determination of 26 September 2007 are revoked and the following orders made:

“1.The Respondent Employer is to pay the Applicant Worker the sum of $11,250.00 as lump sum compensation under section 66 of the Workers Compensation Act 1987 (as saved by Schedule 6 Part 18C of the Workers Compensation Act 1987) in respect of an additional 15% permanent loss of use of the Applicant’s left leg at or above the knee as a result of his injury on 13 January 2001.

1A.The assessment of the Applicant Worker’s claim for additional loss of efficient use of sexual organs is remitted to the Registrar for referral to Dr Breslin, Approved Medical Specialist.”

Paragraphs three, four and five of the Arbitrator’s determination of 26 September 2007 are confirmed.

No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

1. This appeal concerns the interpretation of certain Medical Assessment Certificates (‘MACs’) under section 326 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and under Schedule 6 Part 18C of the Workers Compensation Act 1987 (‘the 1987 Act’) where the worker made a claim for additional lump sum compensation due to a deterioration in his condition resulting from his proven work injury.

1. The matter has been the subject of a previous claim between the same parties in the former Compensation Court of NSW.  Campbell ACJ decided that claim on 14 May 2003 when his Honour found that Mr Rowe had sustained injury to his back on 13 January 2001 (Rowe v John Baker Contracting Pty Ltd, matter No 3056 of 2002).  Though the date of injury is recorded as 7 February 2001 in several of the documents referred to in this decision, nothing turns on that error.  In the Compensation Court Mr Rowe (‘the Respondent Worker’) claimed lump sum compensation as a result of a disease injury contracted by a gradual process in the course of his employment with John Baker Contracting Pty Ltd (‘the Appellant Employer’).  His claim was in respect of a permanent impairment of his back, loss of efficient use of his legs, loss of efficient use of sexual organs and for pain and suffering as a result of those losses. 

1. His Honour found that as a result of the work injury Mr Rowe had the following impairment and losses:

(a)a 15% permanent impairment of the back with a deductible proportion of 2/5;

(b)an 8% permanent loss of the efficient use of the right leg at or above the knee with a deductible proportion of 2/5;

(c)a 5% permanent loss of the efficient use of the left leg at or above the knee with a deductible proportion of 2/5, and

(d)a 15% permanent loss of the efficient use of the sexual organs with a deductible proportion of 2/5.

1. The formal award of the court dated 14 May 2003 records:

“1.(1) That the respondent pay the applicant, as lump sum compensation under section 66, $5,400 in respect of 9% permanent impairment of the applicant’s back (being in respect of 15% permanent impairment of the applicant’s back less a deductible proportion of 40% thereof).

(2) That the respondent pay the applicant, as lump sum compensation under section 66, $2,250 in respect of 3% loss of use of the applicant’s left leg at or above the knee (being in respect of 5% loss of use of the applicant’s left leg at or above the knee less a deductible proportion of 40% thereof).

(3) That the respondent pay the applicant, as lump sum compensation under section 66, $3,600 in respect of 4.8% loss of use of the applicant’s right leg at or above the knee (being in respect of 8% loss of use of the applicant’s right leg at or above the knee less a deductible proportion of 40% thereof).

(4) That the respondent pay the applicant, as lump sum compensation under section 66, $4,230 in respect of 9% loss of use of the applicant’s sexual organs (being in respect of 15% loss of use of the applicant’s sexual organs less a deductible proportion of 40% thereof.)

2.That the respondent pay the applicant, as lump sum compensation under section 67, $10,000 in respect of pain and suffering.

3.     That the respondent pay the applicant’s section 60 expenses.

4.That the respondent pay the applicant’s costs forthwith after they have been agreed or assessed.”

1. As can be seen from the above figures, the quantum of compensation awarded (‘the compensable loss’) was the compensation payable after the application of the deductible proportion even though the court’s finding was of a greater loss/impairment.  For example, the amount awarded for the left leg was $2,250.00.  That was the correct compensation payable for a 3% loss of efficient use of the leg at or above the knee but that does not mean that his Honour found a 3% loss of efficient use of the left leg.  The finding was of a 5% loss.  The same reasoning applies to each part of the body for which compensation was awarded. 

1. Mr Rowe also made a claim and received lump sum compensation for a separate injury to his right arm below the elbow.  That claim is not relevant to the appeal and will not be considered in this decision.

1. Since May 2003 Mr Rowe’s back and leg pain has increased significantly.  In May 2005 he underwent back surgery at the hands of Dr Christie, which gave some relief to his leg pain.  In mid 2005 he experienced a return of symptoms radiating into his legs from his back.  As a result of his increased pain he also suffered a decrease in his ability to have sex.

1. By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 14 June 2006, Mr Rowe claimed the following additional lump sum compensation:

(a)2% in respect of the right arm below the elbow including loss of use of the hand;

(b)31% in respect of impairment of the back;

(c)9% in respect of the left leg;

(d)5.2% in respect of the right leg;

(e)31% in respect of sexual organs;

(f)$5,000.00 in respect of pain and suffering as a result of the injury affecting the right arm, and

(g)$25,000.00 in respect of pain and suffering as a result of the injury affecting the back, legs and sexual organs.

1. By its Reply filed on 16 August 2006 the Appellant Employer disputed, among other things, that Mr Rowe suffered any additional permanent losses or impairment.

1. The above claims were referred to two Approved Medical Specialists (‘AMSs’) for assessment.  Dr Breslin, urologist, assessed Mr Rowe’s claim for additional lump sum compensation in respect of loss of use of his sexual organs on 2 November 2006 and issued a Medical Assessment Certificate (‘MAC’) on 29 November 2006.  Dr Isbister, orthopaedic surgeon, assessed Mr Rowe’s claims in respect of his right arm, back and legs and issued a MAC on 29 November 2006 in the following terms:

Body Part (describe the body part as per Table of Disabilities) e.g. right leg at or above the knee	Date of injury	Total amount of permanent % loss of efficient use or impairment	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Total permanent % loss of efficient use or impairment attributable to this injury (after deduction of any pre-existing impairment in column 4.)
Right Arm at or  Below the Elbow	07/02/2001	20%	0	20%
Back	07/02/2001	15%	WHOLE (15%)	0%
Right Leg at and Above the Knee	07/02/2001	5%	WHOLE (8%)	0%
Left Leg at and Above the Knee	07/02/2001	20%	¼ (5%)	15%

1. Dr Isbister’s MAC was successfully appealed to a Medical Appeal Panel which revoked it and issued an Appeal Panel Medical Assessment Certificate on 7 May 2007 (‘the Appeal Panel MAC’) assessing Mr Rowe’s impairment and losses as follows:

Body Part (describe the body part as per Table of Disabilities) e.g. right leg at or above the knee	Date of injury	Total amount of permanent % loss of efficient use or impairment	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Total permanent  % loss of efficient use or impairment attributable to this injury (after deduction of any pre-existing impairment in column 4.)
Right Arm at or above the elbow	7.2.01	20%	0%	20% i.e. no further impairment
Left leg	7.2.01	20%	Not applicable	(original award 5%)  15% further impairment since original award
Right leg	7.2.01	5%	Not applicable	(original award 8%) i.e. no further impairment
Back	7.2.01	15%	Not applicable	(original award 15%) i.e. no further impairment

1. In light of the Medical Appeal Panel decision and at the request of the Appellant Employer, Dr Breslin issued a new MAC dated 1 August 2007 in exactly the same terms as his MAC of 29 November 2006.  It certifies:

Body Part (describe the body part as per Table of Disabilities) e.g. right leg at or above the knee	Date of injury	Total amount of permanent % loss of efficient use or impairment	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Total permanent  % loss of efficient use or impairment attributable to this injury (after deduction of any pre-existing impairment in column 4.)
Loss of Sexual Organs	7 February 2001	25%	9%	16% (additional to the previous 9%)
Loss of Sexual Organs	Nature and Conditions of Employment 14 January 2000 to 7 February 2001	0%	0%	0%

1. The matter was listed for conciliation and arbitration before a Commission Arbitrator on 21 September 2007 when both parties were represented by Counsel.  Appropriately, the Respondent Employer did not dispute that Mr Rowe has an entitlement to additional lump sum compensation (see Lourdes House Hospital v Wheeler (1996) 13 NSWCCR 495; Department of Education v Howlett NSWCA 40284/96 (unreported 27/11/96 BC9607713), but did dispute the amount of that compensation and the appropriate method to be used to calculate it.  The matter proceeded to arbitration at the conclusion of which the Arbitrator delivered an ex tempore decision in favour of Mr Rowe.  The Commission issued a Certificate of Determination on 26 September 2007 in which the Arbitrator’s orders are recorded as follows:

“1.  The Respondent will pay the Applicant the sum of:-

a.   An additional $3,600 in respect of a further 6 percent impairment to the back;

b.   An additional $12,750 in respect of a further 17 percent loss of use of the left leg at or above the knee;

c.   An additional $6,227.50 in respect of a further loss of use of the sexual organs of 13.25 percent.

2.The awards made in order 1 hereof are made in accordance with the Medical Assessment Certificate of Dr Breslin dated 1 August 2007 and the Medical Appeal Panel decision of 7 May 2007.

3.The Respondent will pay to the Applicant an additional $7,500 in respect of further s. 67 entitlements.

4.On the Applicant’s application the claim in respect of the right arm below the elbow is discontinued and I dispense with the necessity for the Applicant to lodge a Notice of Discontinuance.

5.The Respondent will pay the Applicant’s costs as agreed or assessed with the following additional orders:-

a.   I certify this matter as being complex pursuant to the relevant provision of the now repealed Regulations;

b.   I certify that the Applicant is entitled to costs pursuant to Clause 4.10 of the now repealed costs Regulations;

c.   I certify that the costs of the investigator’s report are recoverable by the Applicant pursuant to Regulation 82(b) of the Workers Compensation Regulations 2003.”

1. By an appeal filed on 19 October 2007 the Appellant Employer seeks leave to appeal the above determination.

PRELIMINARY MATTERS

1. 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.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission 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 TO APPEAL

Monetary Threshold

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

1. The Respondent Worker disputes that the quantum in issue on appeal meets the thresholds in subsections 352(2)(a) and (b) of the 1998 Act, which provide:

   “(2) The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:

   (a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
   (b) at least 20% of the amount awarded in the decision appealed against.”

1. Mr Rowe submits that the difference between the quantum of the section 66 awards by the Arbitrator and the value of the Medical Appeal Panel MAC and Dr Breslin’s MAC is only $3,807.50 and the thresholds are not satisfied. I do not accept this submission. The quantum of the award that should be made, if the appeal is successful, is in dispute. The figures suggested by Mr Rowe are one interpretation of the evidence, but not the only interpretation.

1. The value of the Arbitrator’s award is $30,077.50 and 20% of that amount is $6,015.50.  The Appellant Employer’s submissions would, if successful, result in Mr Rowe’s awards being reduced as follows:

(a)in respect of the back claim – reduced from $3,600.00 to nil, a difference of $3,600.00;

(b)in respect of the left leg claim – reduced from $12,750.00 (17%) to $11,250.00 (15%), a difference of $1,500.00, and

(c)in respect of the claim for loss of use of sexual organs – reduced from $6,227.50 (13.25%) to $4,700.0 (10%) (or lower), a difference of at least $1,527.50.

1. Therefore, the quantum of compensation at issue on appeal is at least $6,627.50, which satisfies the threshold in subsection 352(2)(a).  As the whole of that amount is at issue, subsection 352(2)(b) is also satisfied.

Time

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

1. I grant leave to appeal.

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are whether the Arbitrator erred in:

(a)failing to properly consider, analyse, evaluate and have proper regard to the whole of the contents of the “Medical Assessment Certificates” and a Medical Appeal Panel “Medical Assessment Certificate”;

(b)awarding Mr Rowe compensation in respect of an additional 6% impairment of the back, an additional 17% loss of use of the left leg at or above the knee, and an additional 13.25% loss of use of sexual organs;

(c)failing to properly consider, analyse and take into account the award of the Compensation Court made on 14 May 2003, and

(d)not referring the matter for further medical assessment under section 329 of the 1998 Act to clarify:

(i)Mr Rowe’s degree of permanent impairment as a result of the injury, and

(ii)whether any proportion of permanent impairment of the worker was due to any previous injury or pre-existing condition or abnormality and, if so, to what extent.

REVIEW

1. 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.”

1. 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.”

1. 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]).

1. The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 where Spigelman CJ said at [28] and [30]:

“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.

30. 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 contends.”

1. 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).

1. I intend to apply the above principles in the matter before me.

SUBMISSIONS AND FINDINGS

Back and Leg Claims

1. Mr Rowe submitted to the Arbitrator that under section 326 of the 1998 Act MACs are only conclusively presumed to be correct in respect of the degree of permanent impairment and as to whether any proportion of permanent impairment is due to a previous or pre-existing condition, and that the section does not provide any such presumption in respect of the AMS assessment of a further loss.  Therefore, the content of the fifth column of the MACs must be considered as some evidence but not conclusive evidence of the matters stated.

1. The Arbitrator essentially agreed with this submission. He held that a MAC is only conclusively presumed to be correct in respect of the specific matters set out in section 326(1) of the 1998 Act and that the item in the fifth column of the MACs (“Total permanent percentage loss of efficient use or impairment attributable to this injury (after deduction of any pre-existing impairment in Column 4))” is not a category mentioned in section 326(1). Therefore, the percentages in that column are not conclusively presumed to be correct but are only some evidence in the proceedings (Reasons T34.29-36). He held (at T34.12) that the third column of the MACs (“Total amount of permanent % loss of efficient use or impairment”) relates to subparagraph (a) of section 326(1) of the 1998 Act, which says that the MAC is conclusively presumed to be correct as to “the degree of permanent impairment of the worker as a result of an injury”.

1. Mr Rowe then submitted that the correct approach to the assessment of the claim for additional lump sum compensation was as follows:

Body Part	Back	Left Leg	Right Leg	Sexual Organs	Pain and Suffering
(a)Assessment of Campbell ACJ 14 May 2003	15%	5%	8%	15%	20% most extreme case
(b) Award of Campbell ACJ after 40% deduction 14 May 2003	9%	3%	4.8%	9%	$10,000
(c) MAC Assessment Dr Breslin 2 November 2006	25%
S323 deduction Dr Breslin 2 November 2006	9% of 25% = 2.25%
MAP MAC assessment 7 May 2007	15%	20%	5%
S323 deduction	0	0	0
(d) Balance after s323 deduction	15%	20%	5%	22.25
Further loss (d) – (b)	6%	17%	0	13.25%	15%
Award for further loss	$3,600	$12,750	0	$6,227.50	$7,500

1. The Arbitrator accepted this approach and made an award in the amounts set out in the last row of the above table.

1. Section 326 of the 1998 Act provides:

“326 Status of medical assessments

(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:

(a) the degree of permanent impairment of the worker as a result of an injury,
(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c) the nature and extent of loss of hearing suffered by a worker,
(d) whether impairment is permanent,
(e) whether the degree of permanent impairment is fully ascertainable.

(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”

1. The Appellant Employer’s challenge is that the Arbitrator effectively substituted his own “certification” under section 326. It argues that the figures in the fifth column of the MACs were, on a full reading of the certificates, referrable to section 326(1)(a) as they clearly dealt with the matters required to be dealt with under the Act “as to the degree of permanent impairment of the worker as a result of an injury” (Appellant Employer’s further supplementary submissions 7 May 2008, page two). Therefore, in respect of Mr Rowe’s entitlements for his back, left leg at or above the knee and right leg at or above the knee, his entitlements are as set out in the fifth column of the Appeal Panel MAC. Leaving aside the assessment for the right arm at or above the elbow, those assessments are:

(a)Left leg:    15% further impairment since original award;

(b)Right leg:  no further impairment, and

(c)Back:        no further impairment.

1. Whilst there may be some merit in Mr Rowe’s argument that the fifth column of the MACs are not conclusively presumed to be correct under section 326(1)(a), I do not have to decide this issue as the claim is governed by Schedule 6 Part 18C of the 1987 Act (Part 18C). That part provides that the Workers Compensation Acts (the 1987 Act and the 1998 Act) apply to an “existing claim” as if the Workers Compensation Legislation Amendment Act 2001 and the Workers Compensation Legislation Further Amendment Act 2001 (the amending Acts), which introduced the new lump sum compensation regime on 1 January 2002 and apply to injuries on and after that day, had not been enacted (Part 18C, clause 2). An “existing claim” means a claim for compensation that is made before 1 January 2002 or a “related claim” that is made or entitled to be made (whether before or after the commencement of Part 1 of Chapter 7 of the 1998 Act) (see section 250 of the 1998 Act). Related claims “are claims or further claims for compensation in respect of the same injury, whether or not the claims are in respect of the same kind of compensation” (emphasis added) (section 250 of the 1998 Act).

1. Mr Rowe’s claim for additional lump sum compensation is therefore an “existing claim” and the 1987 Act and the 1998 Act are to apply, subject to the terms of the transitional provisions set out in Part 18C, as if the amending Acts had not been enacted. The relevant transitional provisions are in clause 4 of Part 18C, which provides:

“4 Disputes concerning lump sum compensation claims

(1) In the case of a new claim in respect of an injury received before the commencement of the lump sum compensation amendments, compensation under Division 4 of Part 3 (as in force before the commencement of those amendments) may not be awarded by the Commission if there is an impairment dispute unless the dispute has been assessed by an approved medical specialist under Part 7 of Chapter 7 of the 1998 Act.
(2) An assessment certified in a medical assessment certificate pursuant to the medical assessment of an impairment dispute is conclusively presumed to be correct as to the matters in dispute in any proceedings in respect of the claim for compensation concerned.
(3) For the purposes of this clause, Part 7 of Chapter 7 of the 1998 Act extends (with such modifications as may be prescribed by the regulations) to the assessment of an impairment dispute as if it were a medical dispute under that Part.
(4) In this clause, ‘impairment dispute’ means a dispute about whether a loss or impairment exists and, if so, the nature and extent of the loss or impairment.”

1. For the purposes of clause 4 of Part 18C, Chapter 7 of the 1998 Act is modified by Regulation 223 of the Workers Compensation Regulation 2003 which provides:

“223.The following modifications are prescribed to Part 7 of Chapter 7 of the 1998 Act as that Part applies to a new claim in respect of an injury received before the day on which that Part commences:

(a)omit section 322 (Assessment of impairment),

(b)omit section 323 (Deduction for previous injury or pre-existing condition or abnormality).”

1. Applying clause 4 (2) of Part 18C, an assessment certified in a MAC is “conclusively presumed to be correct as to the matters in dispute in any proceedings in respect of the claim for compensation concerned”.  The matters in dispute in the present claim are whether Mr Rowe has since May 2003 sustained a further loss or impairment as a result of his original injury and, if so, the extent of that further loss or impairment.  It is in the context of this provision that the matter must be determined.

1. Campbell ACJ found Mr Rowe’s impairment/losses in May 2003 to be:

(a)Back:  15%

(b)Left leg at or above the knee:      5%

(c)Right leg at or above the knee:     8%

1. The Appeal Panel MAC assessed the current impairment/losses to be:

(a)Back:        15%

(b)Left leg:    20%

(c)Right leg:  5%

1. The Appeal Panel did not certify that the whole of these losses resulted from the injury as has been argued by the Respondent Worker.  It stated that the “Proportion of permanent impairment due to pre-existing injury, abnormality or condition” to be “Not Applicable”.

1. Mr Rowe’s submissions (accepted by the Arbitrator) assumed that the Appeal Panel certified that there was a ‘nil’ deductible proportion under section 323 of the 1998 Act and, therefore, the further loss in respect of the left leg was to be calculated by deducting the compensable loss found by Campbell ACJ (3%) from the total loss found by the Appeal Panel (20%), giving an entitlement to 17%.  For the back, it was submitted (and accepted by the Arbitrator) that the further impairment was to be calculated by deducting the compensable loss found by Campbell ACJ (9%) from the impairment assessed by the Appeal Panel (15%), giving an entitlement of 6%. 

1. Mr Rowe’s submissions have wrongly assumed that section 323 applied (see [39] above), though that assumption makes no difference to the end result because sections 68A and 68B of the 1987 Act apply and those sections are in substantially the same terms as section 323.  The relevant error in the Respondent Worker’s approach is the assumption that the Appeal Panel certified a deductible proportion of ‘nil’.  The Appeal Panel made no such certification.  It stated that the “Proportion of permanent impairment due to pre-existing injury, abnormality or condition” was “Not applicable”.  In respect of the back, the Appeal Panel agreed with the AMSs assessment of 15%, which was “the same as the Compensation Court” and “means no further assessable impairment” (Appeal Panel’s Reasons, paragraph 25).  As Mr Rowe suffered no further or additional impairment of his back there was no need for the Appeal Panel to consider section 323 (or sections 68A or 68B of the 1987 Act), thus its statement of “Not Applicable” in the fourth column of its MAC dated 7 May 2007.  It follows therefore that Mr Rowe has no further entitlement to lump sum compensation in respect of his back.  The Arbitrator erred in deducting the 9% compensable impairment awarded by Campbell ACJ from the 15% impairment found by the Appeal Panel MAC and determining that Mr Rowe sustained a further impairment of 6%.  The Appeal Panel MAC does not support that conclusion.

1. In assessing a claim for further impairment it is necessary to compare like with like.  The finding by Campbell ACJ before the application of section 68B (15%) has to be deducted from the impairment found by the Appeal Panel (15%).  The Arbitrator’s approach deducted the compensable loss/impairment found by Campbell ACJ from the current loss/impairment assessed by the Appeal Panel MAC.  He adopted that approach on the incorrect assumption that the Appeal Panel found that the whole of the current loss/impairment had resulted from the injury with no deduction under section 323 (sections 68A or 68B).  The Appeal Panel made no such finding.  It was not open to the Appeal Panel to recalculate the deductible proportion allowed by Campbell ACJ.  The findings made by Campbell ACJ created an estoppel on the issues he determined and it was not open to an AMS or the Appeal Panel to make a finding contrary to the previous decision of the Compensation Court in respect of the deductible proportion as at May 2003.  The Appeal Panel did not purport to do so.  The result is that Mr Rowe has clearly not sustained a further impairment of his back.

1. Had Mr Rowe suffered a further impairment of his back (in addition to the 15% assessed by Campbell ACJ) it would then have been necessary for the AMS to assess whether any part of that further impairment had resulted from the compensable injury or from a pre-existing injury or condition.  That issue did not arise in respect of the back because the AMS assessed, and the Appeal Panel agreed and certified, that Mr Rowe had not sustained any further impairment of his back, whether as a result of the compensable injury or otherwise. 

1. In respect of the left leg at or above the knee the AMS assessed, and the Appeal Panel agreed and certified, that Mr Rowe now suffers a 20% loss of efficient use.  As his previous loss was 5% he has suffered a further 15% loss.  At paragraph 23 of the Appeal Panel’s Statement of Reasons for Decision it noted the “further impairment to the left leg which is assessed by the AMS as 20%.  The Panel agrees with the assessment of 20%, that it is a 15% deterioration since the original assessment.  None of this further impairment [sic, loss] is attributable to the pre-existing condition” (emphasis added).  Therefore, the further compensable loss of efficient use of Mr Rowe’s left leg at or above the knee is 15%.  To determine the correct compensation for Mr Rowe’s further loss it is necessary to compare his previously assessed loss (5%) with his currently certified loss (20%) and to award him the difference (15%).  To award 17% is to award Mr Rowe an amount greater than the further loss assessed by the Appeal Panel MAC, is inconsistent with the evidence and inconsistent with determination by Campbell ACJ.  In awarding that amount the Arbitrator was in error.

1. Moreover, under clause 4 of Part 18C “a medical assessment certificate pursuant to the medical assessment of an impairment dispute is conclusively presumed to be correct as to the matters in dispute”. The Appeal Panel MAC clearly states in its fifth column the extent of Mr Rowe’s current impairment/loss and the extent to which that impairment/loss has resulted from the subject injury. They are “the matters in dispute” and the Appeal Panel MAC has determined them.

1. Even if Part 18C did not apply and the Appeal Panel MAC was merely ‘some evidence’ of the matters in dispute, I would, for the reasons outlined above, have no hesitation in reaching the same conclusion. To do otherwise would be contrary to the clear evidence and would be inconsistent with the decision of Campbell ACJ.

Sexual Organs

1. In Dr Breslin’s further MAC dated 1 August 2007 he referred to and considered the contents of the Appeal Panel MAC and its Reasons.  He noted that Mr Rowe’s pain had deteriorated since the award by Campbell ACJ and that “such loss of sexual function that he [Mr Rowe] has is associated with pain…and the inability to have an erection which may well be due to the amount of analgesic drugs he is taking” (Dr Breslin’s MAC 1 August 2007, page six).  At page eight Dr Breslin stated that he assessed Mr Rowe to have “25% loss of sexual organs, an increase of 16% on the previous award due to deterioration” (emphasis added). 

1. At page nine Dr Breslin noted the results of the Appeal Panel and stated:

“My assessment is based on the history I obtained from Mr Rowe and my assessment of increase in his sexual loss is associated with that history and overall assessment of sexual function and pain state.  The increase in the left leg award would have some further bearing on his sexual activity and I take that into consideration, but basically my assessment of his increase in sexual loss is due to his history and my assessment of him at examination.”

1. At page 10, Dr Breslin repeated that his assessment was not solely on the basis of figures from either Dr Isbister’s original MAC or the Appeal Panel MAC, “but rather on my assessment of Mr Rowe when I examined him, the taking of his history and making an assessment on the overall picture presented to me.”

1. A number of issues arise from Dr Breslin’s MAC of 1 August 2007. 

1. His assessment of the total permanent percentage loss of efficient use of sexual organs suffered by Mr Rowe is 25%. That finding is conclusively presumed to be correct (section 326(1)(a) of the 1998 Act and Part 18C clause 4(2) of the 1987 Act). The confusion has arisen in respect of the next column of his MAC (the fourth column) where he assessed the “Proportion of permanent impairment due to pre-existing injury, abnormality or condition” to be 9%. The Respondent Worker submitted, and the Arbitrator accepted, that 9% of 25% is 2.25% and that was the appropriate deduction under section 323. Whilst the arithmetic is correct, it is patently obvious from a reading of the whole of the MAC and the doctor’s reasons that he did not apply, or intended to apply, a 2.25% deduction to the assessment of 25%.

1. Dr Breslin erroneously felt that he was required to deduct the 9% compensable loss found by Campbell ACJ from the 25% loss he assessed, leaving a net loss of 16%.  The 9% assessed by Campbell ACJ was not a loss resulting from a previous injury but was the compensable loss resulting from the injury the subject of the present claim and it should not have been deducted.  In my view this was an obvious error by the AMS.  His task was to assess Mr Rowe’s current loss of efficient use of sexual organs.  He assessed that loss to be 25%.  That loss is greater than the 15% loss determined by Campbell ACJ and Mr Rowe has therefore clearly suffered a further loss.  Next, the AMS was required to assess whether any proportion of the further loss resulted from any pre-existing injury or condition under sections 68A and section 68B of the 1987 Act, not under section 323 of the 1998 Act.  He does not appear to have done that.  Whilst I note that the Appeal Panel concluded that the whole of the further loss of use of the left leg at or above the knee resulted from the deterioration as a result of the work injury and that there was to be no deduction for any pre-existing injury or condition, the question of whether the same conclusion is appropriate in respect of the further loss of use of sexual organs is a matter for the AMS.  It is difficult to see how the AMS could logically come to a different conclusion to that reached by the Appeal Panel on this issue.

1. It follows therefore that the Arbitrator erred in awarding Mr Rowe compensation in respect of a further 13.25% loss of use of sexual organs, as that finding was not open on the evidence.  The Arbitrator wrongly deducted the 9% found by Campbell ACJ from 22.25% (the figure wrongly found by the Arbitrator to be the assessment made by the AMS after the section 323 deduction) and awarded the difference (13.25%).  This part of the claim must therefore be re-assessed.

1. At the arbitration the Appellant Employer submitted that in the case of ambiguity in a MAC or Appeal Panel MAC the matter could be referred back to the AMS or Appeal Panel for clarification (T23.16).  In light of the issues I have noted in Dr Breslin’s MAC, the most appropriate course is for the matter to be remitted to the Registrar for her to refer the matter to the AMS for clarification of his MAC.  Given that Campbell ACJ assessed the initial loss at 15% and the current loss is 25%, the question arises as whether any part of the additional loss of 10% has resulted from a pre-existing injury or condition.  If the answer to that question is ‘no’ (as it was in respect of the additional loss of efficient use of the left leg at or above the knee), then Mr Rowe’s entitlement is 10%.

CONCLUSION

1. The end result is that the Arbitrator erred in awarding Mr Rowe any additional compensation in respect of his back and should have awarded an additional 15% compensation in respect of the left leg at or above the knee, not 17%.  The quantification of Mr Rowe’s additional compensation in respect of his further loss of use of sexual organs must be deferred until the above issues are clarified with the AMS.

OTHER MATTERS

1. The Appellant Employer’s grounds of appeal do not challenge the Arbitrator’s assessment of additional compensation under section 67 and no submissions have been made about this part of the Arbitrator’s award. If such a challenge were to be made on the grounds that Mr Rowe is now entitled to slightly lower section 66 compensation than the Arbitrator awarded, I would have no hesitation in rejecting it. The evidence clearly supports the Arbitrator’s finding of additional compensation for pain and suffering. In terms of the overall claim the reductions in Mr Rowe’s section 66 compensation are fairly modest. The fact that he has suffered a significant increase in his pain and suffering as a result of his further losses is beyond doubt and the awarding of an additional $7,500.00 (15% of a most extreme case) having regard to Mr Rowe’s additional losses and general circumstances is well within the reasonable range of compensation for cases of this kind.

DECISION

1. Paragraphs 1(a), (b) and (c) and paragraph two of the Arbitrator’s determination of 26 September 2007 are revoked and the following orders made:

“1.The Respondent Employer is to pay the Applicant Worker the sum of $11,250.00 under section 66 of the Workers Compensation Act 1987 (as saved by Schedule 6 Part 18C of the Workers Compensation Act 1987) in respect of an additional 15% permanent loss of use of the Applicant’s left leg at or above the knee as a result of his injury on 13 January 2001.

1A.The assessment of the Applicant Worker’s claim for additional loss of efficient use of sexual organs is remitted to the Registrar for referral to Dr Breslin, Approved Medical Specialist.”

1. Paragraphs three, four and five of the Arbitrator’s determination of 26 September 2007 are confirmed.

COSTS

1. No order as to costs of the appeal.

Bill Roche

Deputy President  

18 February 2008

I NING DONG CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE