Abela v the WorkCover Corp (Gerard Industries P/L) No. Scgrg-97-1617 Judgment No. S6803

ABELA v THE WORKCOVER CORPORATION
(GERARD INDUSTRIES PTY LTD)
[1998] SASC 6803

Full Court: Doyle CJ, Olsson and Lander JJ

OLSSON J

This is an appeal, by leave, against a decision of the Workers Compensation Appeal Tribunal (“the Tribunal”) made on 14 November 1997, whereby an appeal by the appellant against determinations of a Review Officer was dismissed.
The Review Officer was called upon to deal with four separate applications for review. Details of the determinations involved were as under:-

(1)... Determination by the respondent dated 29 July 1994 to reject a claim for compensation by the appellant dated 25 March 1994 (but not received by it from the relevant employer until 16 June 1994). This claim asserted “Injuries to R LEG, KNEE, HIP, L BACK” said to have arisen from incidents in 1991 and late 1993. The claim was actually received by the employer on 8 April 1994;

Determination by the agent of the respondent dated 2 April 1996 rejecting the appellant’s claim for a lump sum award pursuant to section 43 of the Workers Rehabilitation and Compensation Act for an unspecified left knee injury said to have been sustained on 11 November 1992;

Determination by that agent dated 10 April 1996 rejecting a more specific claim for a section 43 lump sum in respect of a right [sic] knee injury said to have been sustained on 11 November 1992; and

Determination by that agent dated 16 April 1996, redetermining the lastmentioned claim to correct a formal error in the determination of 10 April. It reiterated the rejection of the claim.

It was common ground that the appellant had been employed by Gerard Industries Pty Ltd as a process worker since 1976.
Distilled to the essence her contention was that an incident on 11 November 1992, when she slipped on a patch of oil and bruised her left knee, jarred her hip - thereby markedly worsening a hip problem said to have stemmed from an undocumented incident in about 1989, when she allegedly slipped in a pot-hole at work. The appellant contended that this sequence of events led to a hip replacement performed on 9 December 1993, in the sense that the incidents relied upon aggravated a pre existing arthritic hip, thereby accelerating a need for operative treatment.
On the evidence led before him the Review Officer concluded in his decision that, whilst there was no doubt that the appellant had experienced a hip problem requiring ultimate surgery, nevertheless, the medical evidence indicated that the hip had been heavily degenerate by reason of osteoarthritis; and that such condition was the main reason for the hip replacement.
Having so found the Review Officer went on to accept that, given the undoubted degenerative condition, the appellant’s hip disability would be compensable “if it had been made symptomatic for the first time, or aggravated, by a work incident, thus bringing forward in point of time the need for surgery ... ”.
He stressed that the onus of proving such a situation lay with the appellant. He made the obvious point that, given that there was no formal record of the alleged 1989 incident and that there was no objective evidence, supporting that of the appellant, to suggest that the alleged two incidents of work related trauma had contributed to or accelerated the hip degeneration, the credibility of the appellant was, necessarily, a vitally important consideration.
Having considered the evidence before him the Review Officer found that the appellant had not discharged her onus of proof. He held that her credibility as a witness “was slight”. Quite apart from the fact that she was “a very poor historian”, she was vague and evasive as to certain matters and her conduct over time had not been consistent with what she now contends. He rejected her assertion that she had consulted a doctor shortly after the alleged 1989 incident and accepted that her first complaint to a medical practitioner concerning her hip was not made until 1 October 1991. He discussed what he perceived to be conduct and statements in her dealings with medical practitioners over time inconsistent with what she now says.
Whilst he accepted the occurrence of a fall on 11 November 1992 (which had been acknowledged by the respondent to have taken place), the Review Officer said that the only possible inference that he could draw was that this incident “was not of major significance” in her later presentation and, also, was not even seen by her, at any relevant time prior to the hip replacement, as being of major significance. It is obvious, contrary to the submission of the appellant, that the Review Officer was employing the expression “major significance” in the descriptive, rather than the technical, sense.
He went on to comment:-
“Additionally, I am constrained by the material before me to conclude that likewise the alleged 1989 fall (if it occurred, and I am not prepared to make an affirmative finding that it did) was not reported by her contemporaneously to any medical practitioner because it was not of major concern. The hip condition is degenerative in origin, and I can only conclude that it simply happened to become more florid in 1991, between the two falls, eventually leading to the hip replacement in 1993, without either fall being shown on the balance of probabilities to have played a significant part in the progression.”
That being so, he found that, on any view, the appellant failed on the merits as to the first determination complained of; and that such determination had to be upheld.
He went on to say that, in any event, the relevant claim was out of time and “statute barred”, insofar as it sought to rely on the alleged incident of 1989. As to this he commented:-
“... to the extent that the subject claim relates to the alleged fall of 1989, the very difficulty counsel and the employee have had in searching for documents that might cast any light on the allegation so long after the event clearly demonstrate that the defence provided by section 52(3)(b)(i) is not made out. Proof that the incident even occurred - apart from the applicant’s own unsatisfactory uncorroborated evidence - seems to have been rendered impossible by the delay in claiming; this in turn clearly prejudices the proper determination of the claim (see WorkCover v Rudland (unreported) Print A.89/1994; Novello v WorkCover (1995) 7 WCATR 59; Dennis v GMH (unreported) Print A.9/1996). Additionally, I am not satisfied on the evidence that the worker has discharged her onus of making out the ground of defence provided by section 52(3)(b)(ii).”
The Review Officer was disposed to deal with the asserted knee injury claims in a much more summary fashion.
As he stressed, all of these claims were in respect of permanent disability said to have resulted from the incident of 11 November 1992. This was, he noted, “claimed and accepted as a left knee injury that involved no lost time”. His ultimate finding was to this effect:-
“... The material before me - other than opinions generated on the basis of, and entirely dependent on, the worker’s stated history for their force - suggests that it was a very mild injury with no lasting consequences and no sequelae. There is no satisfactory evidence before me even that the left knee itself has suffered any permanent residual loss of function, nor any estimate of the percentage of such loss.”
He also made the point:-
“Those applications were lodged when the principal proceedings were at an advanced stage. Two days of evidence had been heard; the new files came to me about the time of the final day of evidence and were little referred to on that day or on the day when the employer’s records were inspected by counsel and when final submissions were made. The bulk of counsel’s submissions were made before these applications came to me and I have no note of any submissions of any consequence on section 43 at all.”
In the event he did not proceed to a determination of other than the first application for review, but reserved liberty to the parties to apply concerning the outstanding matters.
The appellant appealed to the Tribunal against the determination made by the Review Officer. A multiplicity of grounds was pleaded. The Tribunal summarised the effect of those grounds as being:-

......... the evidence of Mr Fraser (an orthopaedic surgeon) was mistaken (albeit innocently) and this led to an incorrect finding on credibility;
.the evidence of a lay witness Koukouvitakis was led in rebuttal of a suggestion of recent invention and had incorrectly been classed as “character” evidence;
.the Review Officer erroneously focused on the 1989 incident, when the real cause of the disability was the 1992 incident; and
.the Review Officer erred in law both as to the nature of an aggravation as a legal concept and also in mistakenly proposing a much higher test of the trauma (i.e. “significant contribution”) rather than the test of “material contribution”.

On the hearing of the appeal some oral evidence, additional to that before the Review Officer, was led from Messrs Fraser and Cohen, two specialist medical practitioners.
A feature of Mr Fraser’s evidence was that he conceded that one sentence in a report written by him had been factually incorrect and required revision in light of a re-reading of his case history notes.
In the report Mr Fraser had recorded that the appellant had told him that, on the day following the alleged 1989 fall, she had been seen by Dr Wallman, her general practitioner. Mr Fraser conceded that his notes indicate that what the appellant had said was that, following the alleged fall in 1989, she had seen her medical practitioner - but not necessarily the next day. He said, however, that the impression with which he was left was that the relevant consultation was “within a fairly short period of time” after the alleged incident. [This evidence fell to be considered against the background of Dr Wallman’s evidence that the appellant made no complaint to him of pain in her hip until 4 October 1991 - almost two years later.]
The Tribunal recorded that counsel for the appellant contended that, in those circumstances, the finding as to the credibility of the appellant was flawed, because it had been based on an incorrect factual premise.
It is fair to say that the Tribunal was unimpressed by that contention. Thompson DP was of the opinion that the criticism made was unfounded because:-

......... the actual finding of the Review Officer was that the appellant “has repeatedly said that she had seen the doctor shortly after the 1989 incident” and the history reported by Mr Fraser was given only as one example. The revised evidence of Mr Fraser did not depart from that broad proposition. It supported it.
.the finding of the Review Officer, was, on the whole of the evidence, well founded. The appellant herself had asserted a version of events consistent with consulting her doctor soon after the alleged event. Moreover, the learned Deputy President concluded that the transcript of evidence patently confirmed that the appellant had been vague and evasive, as asserted by the Review Officer.

As the learned Deputy president pointed out, the relationship (if any) between work related trauma and the onset of pain in what was, undoubtedly, a developing and congenital disease of the bone, arose as a critical consideration. As he put it, the appellant’s case was not that the osteoarthritis was caused by the trauma, but that the trauma had precipitated higher levels of pain in an already degenerate hip. In a situation in which a temporal connection between the occurrence of trauma and the seeking of medical assistance for symptoms said to have been generated by it was of fundamental importance, the evidence of the appellant, against the background of all other evidence was, he considered, simply not impressive.
After a review of the material before him the learned Deputy President held that the Review Officer’s conclusions as to credibility had not successfully been impeached.
The learned Deputy President opined that a perusal of the transcript patently revealed that the Review Officer had not erroneously characterised the evidence of the witness Koukouvitakis. Although it was true that, in his reasons, he had adverted to it as “character evidence”, it was plain that this was no more than a loose generic title. The transcript, at page 294, reports the Review Officer as accurately describing the evidence in question as being “corroborative of non recent invention”. That was, he considered, the apparent express purpose of leading it.
The learned Deputy President went on to conclude that, when the evidence of the witness Koukouvitakis is analysed objectively, it is, in reality, so non definitive and based on speculation and hearsay as to be of very little weight.
He rejected the second basis of appeal as being without substance.
The main thrust of the third contention advanced before the Tribunal was that the Review Officer had, in focusing on issues related to the alleged 1989 incident, failed to consider the point that pain per se can constitute an aggravation of a pre existing condition; and that inadequate consideration had been given to that aspect when the Review Officer found that the appellant had not established a trauma related progression in the pathological state of the degenerative hip.
The learned Deputy President reasoned that there were two conclusive answers to that complaint.
The first was that any claim stemming from the incident of 11 November 1992 was necessarily in respect of an entitlement which arose, at the very latest, by 13 December 1993 (the date of the hip replacement operation). It was thus out of time when the appellant sought to pursue it.
The second was, that, even putting that problem to one side, the Review Officer did in fact make specific findings as to the sequelae of the 1992 incident. He positively found that there were no relevant, timely, complaints of hip pain following the incident; and that even the appellant herself attached no real significance to the incident as being in any way related to the ultimate hip problem. There was no basis for concluding, as alleged in the ground of appeal, that the Review Officer had failed to give proper consideration to the 1992 incident and its sequelae. On the contrary the conclusions arrived at were well founded in the evidence.
The Tribunal rejected the propositions that the Review Officer either applied any incorrect test as to causation, or failed to adopt a correct concept as to the issue of “aggravation”.
I have earlier commented on the somewhat loose language which was employed.
The learned Deputy President concluded that, when the language of the Review Officer is read and understood in the sense in which it was manifestly intended, it is clear that he was properly approaching the problem on the basis of a common sense evaluation adverted to in Workcover Corporation v Sheriff (Lander J, 1 October 1996, S5831, unreported) - the word “significant” employed by the Review Officer in his decision was merely used in the same manner as it was used by Lander J.
Finally, the learned Deputy President summarily rejected the proposition that the Review Officer impermissibly ignored or excluded the concept that pain itself could constitute aggravation. The former referred to the statement of the latter to the effect that:-
“The hip condition is degenerative in origin and I can only conclude that it simply happened to become more florid in 1991 between the two falls eventually leading to the hip’s replacement in 1993 without either fall being shown on the balance of probabilities to have played a significant part in the progression.”
He took the Review Officer to be referring to the actual progression from the non-florid to the florid state; and not as requiring the appellant to demonstrate that there was a relevant degeneration in the pathological sense. In his opinion there was no basis for the assertion pleaded.
On the foregoing basis of reasoning the Tribunal dismissed the appeal.
I have dwelt on the above history in some detail, because an understanding of it is essential to an appreciation of the nature and detail of the appeal which the appellant now seeks to pursue. It must be said, in limine, that, in general, this was a routine “merits” matter of a type routinely coming before both Review Officers and the Tribunal.
In her notice of appeal, as filed, the appellant sought to spell out what were said to be a series of alleged errors of law, so as to invoke the jurisdiction of this court.
In essence the complaints originally expressed in the notice of appeal were that:-

(1)... the Tribunal erred in law in “failing to re-determine the matter in the light of the additional oral evidence from Dr Fraser and Dr Cohen relevant to the issue of whether the incidents at work, in particular the 1992 incident, caused the onset of pain symptoms and/or aggravation of symptoms which were permanent”;

the Tribunal erred in determining that the failure of the Review Officer to consider and make a decision in relation to whether or not the employment contributed to an onset of pain which continued, arising in particular out of the 1992 fall, did not constitute a failure to make a finding in relation to a necessary issue;

the Tribunal erred in law in failing to attach proper significance to the additional evidence of Dr Cohen and Dr Fraser in relation to the Review Officer’s credibility findings (based upon their respective medical reports) that the worker had made prior inconsistent statements to each of them, where:

(a)the effect of the evidence of Dr Fraser was that the worker had not told him that she saw a doctor “the following day”, and

(b)the effect of the evidence of Dr Cohen was that the worker had not told him that she saw a doctor “shortly after” the 1989 incident.

the Tribunal erred in law in finding that the Review Officer had not erred in limiting the relevance of Ms Koukouvitakis’ evidence to “character” where Ms Koukouvitakis described having seen injuries to the worker’s knees at about the time of a complaint of a fall at work, and where the Review Officer relied on the worker’s failure to report the 1989 incident to a medical practitioner in order to undermine the credibility of the worker.

During the hearing of the appeal I took Mr Gray QC, of senior counsel for the appellant, in effect, to concede that the originally pleaded grounds of appeal did not necessarily amount to alleged issues of law for the purpose of invoking the jurisdiction of this court. Rather, he said, they illustrated a basis upon which he asserted that the appeal process before the Tribunal had miscarried.
In the event he amended the grounds of appeal to plead such a miscarriage. In its final form the appeal went forward on the basis of an express plea to the effect that, having received evidence which tended to impeach the findings of the Review Officer as to the appellant’s credibility, it was incumbent upon the Tribunal either to send the matter back for re-hearing by another Review Officer or itself take steps to review the matter on a proper basis of evidence. It did not do so.
This was, in my view, the only substantial issue of law raised by the appeal.
In addressing that issue several specific points need to be made.
The first is that, given that the proceedings before the Tribunal were not a re‑hearing de novo, nevertheless, it was open to counsel for the appellant to call her as a witness before the Tribunal to refute the various criticisms made by the Review Officer in relation to her credibility. No attempt was made to do so. It was therefore difficult to perceive how it can now logically be said that the learned Deputy President fell into error in not remitting the matter to the Review Officer for re-hearing. On the contrary, faced with an election not to call the appellant, he was in the situation that, having heard the supplementary medical evidence, it was plainly open to him to review the whole of the material below in light of it. Indeed, that was his clear duty under the statute.

The second is that the view of the learned Deputy President that the conclusion of the Review Officer as to the appellant’s credibility did not rest, in a critical fashion, on the initial error made by Mr Fraser in his report is undoubtedly correct. Indeed, as has been seen, his corrective evidence on that point simply reinforces the Review Officer’s finding that the appellant maintained the stance that she had seen a doctor “shortly after the 1989 incident”. The finding, derived from the evidence of Dr Wallman, that she did not do so until 1 October 1991, long after the event, was inevitable on the evidence. Dr Cohen’s evidence was also essentially supportive of the finding made. Additionally, there were other factors identified (which I have earlier recited) which, in combination with the appellant’s false assertion as to what she did and one another, provided a compelling basis for the conclusion come to. It is small wonder that the learned Deputy President rejected the appellant’s argument on this score. There was no demonstrable error.
Third, it simply cannot be accepted that, as the appellant seeks to contend, there was any failure, either at first instance or on appeal to the Tribunal, to make a proper finding concerning whether the sequelae of the 1992 incident contributed to an onset of pain which accelerated the operation for a hip replacement.
The plain fact of the matter is that, properly read and understood, the finding of the Review Officer, accepted by the learned Deputy President, clearly negated such a proposition. Indeed the evidence in that regard was, to say the least, compelling.
Quite apart from a complete lack of timely complaint by the appellant of any upsurge in symptoms immediately following the 1992 incident, the report of and evidence given by Mr Davidson - her treating specialist - established:-

......... when he first reviewed the appellant in October 1991, the x-rays indicated a condition of advanced arthritis in the hip. This was of long standing in its genesis;
.there is no evidence that any fall in 1989, if it occurred, had any impact on the progression of the degenerative osteoarthritis. At worst it may have caused some temporary aggravation, but would not have accelerated the arthritic condition;
.when he saw the appellant about a month after the 1992 incident she made no mention of it at all. She simply complained of a worsening of symptoms following the alleged 1989 incident;
.it was his estimation, in 1991, that the then advanced condition would continue to degenerate in a fashion which required review at 6 and 12 months respectively thereafter. He discussed with the appellant the possibility of total hip replacement at that time, which she was unwilling to undergo; and
.x-rays on 10 December 1992 disclosed further progression in the degenerative changes in the hip, which led him, positively, to urge immediate hip replacement - a procedure which he had considered already desirable twelve months earlier. At that time the appellant’s pain was much worse. Walking was painful and restricted.

In the course of his evidence Mr Davidson, a highly qualified specialist in hip replacements, had this to say:-
“Q.... Given that she had a fall on 11 November 1992 and the circumstances were that she didn’t have any time off work, that her duties didn’t change, and assuming that she did not seek treatment or mention this to her general practitioner until January of 1993, do you think that that fall could have aggravated, accelerated or exacerbated her hip condition.
A...... No, I don’t think so at all. When I saw her on 10 December the x-ray on that occasion showed that she had - well, let’s go back one step. Her examination on that occasion revealed that she had much less movement than the previous examination in October 1991 and the x-ray showed that the condition had progressed. That’s totally unrelated to the fall. It’s just due to the progressive nature of the disease.
The evidence given by the witness Ms Koukouvitakis, as to observations which she made is entirely consistent with the scenario portrayed by Dr Davidson. Interestingly, her testimony reveals that the appellant had no thought of seeking to attach her disabilities to any compensable work related situation until she was urged to do so by this witness, after the hip replacement operation and when the appellant was in financial difficulty.
Finally, I have already made reference to the criticism of the appellant that the Review Officer and the Tribunal fell into error in the manner in which they dealt with the nature and effect of the evidence of Ms Koukouvitakis. As was pointed out by counsel for the respondent, the expression “character evidence” was actually coined by counsel for the appellant; and the Review Officer simply adopted that label, as a loose mode of expression, without ever intending a literal meaning of it. Rather he was viewing it as evidence said to support or verify that of the appellant.
It must, however, be conceded that the Tribunal was incorrect in suggesting that the whole of this evidence was inadmissible and of no weight. Plainly, it was admissible as to the physical observations said to have been made of the appellant’s condition and of the fact that some specified complaint may have been made by the appellant. There is no reason to suppose that the Review Officer rejected it as wholly inadmissible. He simply did not attach any real weight to it. In my opinion he was entirely correct in adopting that attitude. The observations made were, in reality, quite equivocal as to their significance. As I have indicated, they fit quite comfortably with the opinions expressed by Mr Davidson.
At the end of the day the state of the evidence, manifestly, was such that no reasonable judicial officer could have concluded that the appellant had discharged the onus which she bore. The weight of the evidence, as reviewed by the Tribunal, compellingly indicated that the hip replacement operation was solely the product of the appellant’s progressive, degenerative condition. It was that condition which dictated the need for the hip replacement, as and when it took place. The evidence fell far short of establishing that any incident, in either 1989 (if there was one) or 1992, aggravated the hip condition in any relevant manner or accelerated the need for operative treatment.
Whilst the learned Deputy President expressed himself in relatively robust terms and, as already indicated, I do not necessarily accept every last conclusion to which he came, nevertheless his ultimate rejection of the appellant’s appeal was the only rational conclusion to which he could have come, on the evidence as it stood. No error of law has been demonstrated.
I would dismiss the appeal.

DOYLE CJ

In my opinion the appeal should be dismissed. I agree with the reasons of Olsson J. There is nothing that I wish to add to those reasons.

LANDER J

I agree for the reasons given by Olsson J that this appeal should be dismissed.

[1998] SASC 6803

21 August 1998