ACI Operations Pty Limited v Nobbs
[2008] NSWWCCPD 124
•23 October 2008
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | ACI Operations Pty Limited v Nobbs [2008] NSWWCCPD 124 | ||||
| APPELLANT: | ACI Operations Pty Limited | ||||
| RESPONDENT: | Ian Nobbs | ||||
| INSURER: | CGU Workers Compensation (NSW) Limited | ||||
| FILE NUMBER: | WCC2584-08 | ||||
| DATE OF ARBITRATOR’S DECISION: | 10 July 2008 | ||||
| DATE OF APPEAL DECISION: | 23 October 2008 | ||||
| SUBJECT MATTER OF DECISION: | Leave to appeal; injury; finding not based on evidence; error of law | ||||
| PRESIDENTIAL MEMBER: | Deputy President Gary Byron | ||||
| HEARING: | Determined ‘on the papers’ | ||||
| REPRESENTATION: | Appellant: | Sparke Helmore | |||
| Respondent: | Steve Masselos & Co | ||||
| ORDERS MADE ON APPEAL: | Paragraphs 1, 2, 3 and 4 of the decision of the Arbitrator dated 10 July 2008 are revoked and the following decision is made in its place: “1. There is an award for the Respondent Worker in respect of his claim for injury to and permanent impairment of the lumbar spine. 2. There is an award for the Appellant Employer in respect of the claim for injury to and permanent impairment of the thoracic spine. 3. I remit this matter to the Registrar to arrange for an assessment by a relevant Approved Medical Specialist, of the degree of permanent impairment resulting from the Respondent Worker’s injuries to his lumbar spine. Paragraph 5 of the decision of the Arbitrator is confirmed and re-numbered paragraph 4.” No order is made as to the costs of this appeal. | ||||
BACKGROUND TO THE APPEAL
On 7 August 2008 ACI Operations Pty Limited (‘ACI’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 10 July 2008.
The Respondent to the Appeal is the worker, Mr Ian Nobbs.
Mr Nobbs commenced working for ACI in September 1989, and in 1991 became a permanent forklift driver in the employ of that company. He says that on or about 31 October 2004 or 1 November 2004 at around 4.30 pm he was working at the Penrith factory and was loading a truck using the forklift. He was pulling some curtains on the truck when “they grabbed under the tray”. He states that he kept pulling them forcibly then lost his grip, falling backwards “impacting forcibly with my thoracic and lumbar region on the edge or corner of a pallet.” Mr Nobbs states that he sustained significant abrasions at the thoracic and lumbar region, and was in considerable pain. He sought first aid assistance, but remained at work until the end of his shift at 7 pm that evening. He then drove home, with some difficulty.
Mr Nobbs states that he had difficulty getting out of bed the next morning, and his wife drove him to see “the work doctor, Dr Chau.” He then went to see his treating doctor, Dr K Jasani at Penrith who referred him for “x-rays of lumbar sacral spine, the day after my injury.”
Mr Nobbs states that after taking four days off work he resumed normal duties but was in extreme pain. On 21 May 2005 he was required to undertake duties on a rotation basis, “which required me to take the forklift to packing rooms to warehouses.” He says that he lasted only two days in this work and went to see his general practitioner who provided him with WorkCover certificates “to perform light duties from 31 May 2005 to 20 October 2006 [sic].”
Mr Nobbs states that after 20 October 2005 he returned to forklift driving/loading and unloading, which he was able to perform because it allowed him to stretch.
About six months after the injury, Mr Nobbs was referred by his treating doctor for CT scans of his “lumbar sacral spine”. Mr Nobbs states that he returned to work on 31 January 2006 from annual leave, and was directed to rotate in and out of the packing room, which required him to remain seated “for 12 hours”. He says that this was a difficult task for him to perform.
Mr Nobbs states that on 6 February 2006 he suffered a further aggravation to his back injury and went on to light duties. In October 2006 his treating doctor referred him to Dr Charles New, orthopaedic/spinal surgeon at Penrith. He was also referred to Dr S Nair who sent him “for an MRI of the lumbar spine in February 2007 to further investigate my lower back pain with right limb sciatica.”
At the date of making his statement, 25 February 2008, Mr Nobbs claims to have been suffering a range of disabilities, comprised of:
“i.Ongoing pain in my back varying in severity at the lumbar spine and thoracic spine
ii.Tightness in the back
iii.Occasional feeling of muscle spasm
iv.Pain radiating into the right groin and scrotal region from sitting too long on the forklift
v.Discomfort radiating into the right thigh, down to my right knee
vi.Unable to stretch right leg without developing quite a marked tingling sensation down to my right leg extending to beneath my right heel
vii.Difficulty with heavy lifting and carrying heavy objects
viii.Difficult performing heavier tasks in and around the home
ix.Difficulty vacuuming and sweeping the garage
x.Unable to sit on the forklift for more than an hour at a time
xi.Unable to bend without significant onset of pain
xii.Unable to stoop for prolonged periods of time
xiii.Unable to perform activities which result in significant jolting or jarring to my spine
xiv.Pain in the right lower limb
xv.On the 14 September I was terminated as Dr Cameron (workers compensation insurer’s doctor) gave me a workcover certificate stating I could only do ‘permanent modified duties’. That is I was not to do prolonged sitting on a forklift and my employer didn’t have this type of work available.
xvi.I am currently in receipt of weekly compensation payments.”
Mr Nobbs appended to his statement, the document marked ‘Appendix 1’, being, ‘Application for Review by Insurer’, requesting a review of its decision as to liability for injury and medical expenses.
In due course, on 9 April 2008, Mr Nobbs filed in the Commission, ‘Application to Resolve a Dispute’ for medical expenses over $7,500, permanent whole person impairment of 10% claiming $12,500, and pain and suffering claiming $15,000.
The parties were unable to settle the dispute, and it proceeded to arbitration on 9 July 2008.
The ‘Certificate of Determination’ was dated and issued on, 10 July 2008.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 10 July 2008 records the Arbitrator’s orders as follows:
“1.The late documents filed in the Commission on 8 July 2008, were admitted into evidence by consent.
2.There is an award for the Applicant in respect of his claim for injury and permanent impairment.
3.I determine that on 31 October 2004 the Applicant suffered a personal injury arising out of and in the course of his employment and for which his employment was a substantial contributing factor.
4.I remit this file for the Registrar to organise an assessment by a relevant Approved Medical Specialist of the degree of permanent impairment resulting from the Applicant’s injuries to his:
a) Thoracic spine;
b) Lumbar spine.
5. The Respondent is to pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
ACI’s Appeal relates to the Arbitrator’s orders 2, 3, 4 and 5 “in relation to the finding that the Respondent Worker suffered an injury to the thoracic spine due to the alleged injury on 31 October 2004.”
ACI submits that the Arbitrator’s decision that Mr Nobbs suffered an injury to the thoracic spine due to the alleged injury on 31 October 2006 is “incorrectly decided and is at odds with the medical evidence.” It further submits that the Arbitrator has incorrectly stated the law in several respects, as well as the “legal issue” in the matter.
ACI does not dispute the Arbitrator’s finding in favour of Mr Nobbs in relation to injury to his lumbar spine.
Mr Nobbs submits that the Appeal has been filed out of time.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
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
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
However, Mr Nobbs submits that ACI has filed the Appeal documents out of time. He states:
“The Respondent submits the time limited to appeal is 28 days from the date of the decision of the Arbitration: see Section 352(4) of the 1998 Act and Rule 16.2(1). The Respondent notes the Arbitrator delivered his Judgment on 9 July 2008 in the presence of Counsel. The last day to lodge and appeal was 6 August 2008. The Appellant filed the Appeal documents on 7 August 2007 [sic] and on 8 September 2008.”
Rule 16.2(2) of the Workers Compensation Commission Rules 2006 (‘the Rules’) provides:
“For the purposes of subrule (1), a decision is made, in respect of a dispute, when the Commission issues a certificate as to the determination of the dispute as required by section 294(1) of the 1998 Act.”
The ‘Certificate of Determination’ issued by the Commission was dated 10 July 2008. Consequently, the Appeal was filed within time in the Commission, on 7 August 2008.
On 18 August 2008, the following Direction was issued by the Registrar:
“If you have indicated in your submissions on appeal that you have been unable to complete your grounds of and/or submissions on appeal for the reason that the transcript of proceedings had not been received by you at the date of lodgement you are required to complete and lodge in the Commission, your final grounds and/or submissions on appeal and serve on all other parties to the appeal within 28 days of the date of this letter, in accordance with Practice Direction No 6.
A copy of this letter has been sent to all other parties to the appeal.”
ACI filed the final grounds of appeal and submissions in the Commission on 8 September 2008, in compliance with that Direction.
Consequently, the Appeal and subsequent documents have been filed within time.
I note that the ‘Notice of Opposition to Appeal Against Decision of Arbitrator’ was filed in the Commission on 19 September 2008.
Section 352(2) provides that the Commission is not to grant leave to appeal unless the amount of compensation at issue in the appeal is both $5,000 and at least 20% of the amount awarded in the decision appealed against. The requirements of this section are met.
Leave to appeal is granted.
EVIDENCE AND SUBMISSIONS
Submissions on Appeal by ACI
ACI submits that the “material” to which it alludes, does not support the Arbitrator’s finding that Mr Nobbs suffered an injury to his thoracic spine on 31 October 2004 or 1 November 2004. It submits that an award ought to have been made in respect of the lumbar spine, only.
Citing what Mr Nobbs said in his claim form dated 29 October 2007, ACI submits that he alleges an injury to the lower back in L4 and L5. It notes Mr Nobbs’ claim of continual back pain and a residual scar resulting from a graze sustained in the incident.
ACI submits that in his report dated 26 July 2007 Dr Patrick records no history and provides no diagnosis in relation to Mr Nobbs’ thoracic spine. Specifically, it notes that Dr Patrick’s report states:
“he has, I believe, sustained a significant back injury when he fallen [sic] backwards forcibly onto the pallet at work on 31 October 2004. As well as the direct trauma, he has probably sustained some degree of hyperextension/lateral flexion injury, with facet joint injury and probably some disc injury at L4/5 and/or L5/S1 level occurring on the background of some degree of pre-existing but totally asymptomatic, Scheuermann’s spinal osteochondrosis – a relatively common (about 1:25 males) genetic/developmental condition.”
Dr Patrick is a surgeon, located at Camperdown, qualified by Mr Nobbs.
ACI further submits that Mr Nobbs has undergone no investigations in relation to the thoracic spine.
ACI also submits that Mr Nobbs’ general practitioner, Dr Cameron, provided no history or diagnosis in respect of the thoracic spine. Dr Cameron is an Injury Management Consultant and Authorised WorkCover Medical Practitioner.
ACI goes on to submit:
“Dr Silva provided a report dated 25 October 2007, which provided the following opinion in relation to the alleged injury to the thoracic spine ‘during the two consultations with me he only located pain in the lumbar spine which was a site of pre-existing degenerative condition called Schmorl’s node formation. He had not complained of the thoracic spine. It is not uncommon to find similar Schmorl’s node formation or degenerative changes in the thoracic spine as well as the lumbar spine. I would not be surprised if such Schmorl’s node formation in the thoracic spine images if and when they were done. Therefore, his complaints to me on the two occasions he saw me has always been the lumbar spine and not the thoracic spine.”
Dr Silva is a consultant orthopaedic surgeon qualified by ACI’s Insurer.
It goes on to assert that none of the documents served in its Reply to Mr Nobbs’ ‘Application to Resolve a Dispute’ indicates that Mr Nobbs ever reported an injury to the thoracic spine.
ACI submits that Dr Nair, treating neurosurgeon, provided a report dated 5 February 2007, which stated, “it is possible that Ian has injured a lumbar disc”, but he provided no history of symptoms or injury in relation to the thoracic spine.
It concludes:
“The Appellant Employer submits that the application to admit late documents filed and served on 8 July 2008 and admitted into proceedings by [the Arbitrator] contains no documents to support the Respondent Worker suffered symptoms or any injury to the thoracic spine due to the alleged incident on 31 October 2004. Specifically, the Appellant Employer notes that Dr Cameron’s clinical notes only contain histories in relation to the Respondent Worker suffering pain in the lumbosacral spine or lower back and make no mention in relation to the Respondent Worker suffering symptoms in relation to the thoracic spine.
The Appellant Employer submits that [the Arbitrator’s] decision should be revoked as his determination is at odds with the medical evidence and is not supported by the qualified medical opinion from Dr Patrick or Dr Silva.”
ACI made further submissions on appeal, which were lodged in the Commission on 8 September 2008.
It submits that the Arbitrator has incorrectly stated the law in Seltsam Pty Limited v McGuiness [2000] NSWCA 29 (‘McGuiness’), when he said, “the respondent worker’s claim will ‘fail if he cannot show that this disability might have been so caused’ by the alleged incident.” It refers to T35 of the transcript of proceedings before the Arbitrator, and submits that the Arbitrator incorrectly quoted the law and effectively lowered the standard of proof from the balance of probabilities to result in Mr Nobbs merely having to establish that the injury “might” have been so caused by the alleged incident. It asserts that the Arbitrator’s decision therefore contains an error of law.
ACI further submits that the Arbitrator incorrectly stated the relevant legal issue in the matter by stating, “However, should the applicant be given the benefit of the doubt and also be assessed on the thoracic region?” It refers again to T35 of the transcript and submits that the Arbitrator has “incorrectly stated the relevant legal issue and standard of proof.” ACI asserts that there is no legal principle espoused at common law or statute that requires Mr Nobbs’ claim to be determined as to whether he is entitled to the benefit of the doubt. It submits that Mr Nobbs was required to establish on the balance of probabilities that his injury arose out of the alleged incident. It states, “Accordingly, the appellant employer submits that [the Arbitrator] has incorrectly stated the standard of proof and his decision contains an error of law and should be set aside.”
It goes on to submit further that the Arbitrator has incorrectly stated the law in McGuiness, by stating:
“But I do believe the applicant should be awarded the benefit of the doubt on the basis of the decision of the Chief Justice and probably has sustained an injury there which should be sent for an assessment and, therefore, my decision is that the appellant sustained both injury to his lumbar spine and thoracic spine and should be referred to an AMS, and I will make the referral.”
ACI submits that the Chief Justice in McGuiness provides no legal principle or authority requiring Mr Nobbs to be given the “benefit of the doubt”. It states that the onus is on Mr Nobbs to establish that on the “balance of probabilities” the injury arose from the alleged incident, and consequently, the Arbitrator is in error in point of law.
Referring to T36 where the Arbitrator quotes Spigelman CJ in McGuiness, ACI submits that the Arbitrator has incorrectly decided the matter on the basis of the principles outlined, as there was no application of “the common sense approach to causation” and the evidence is not sufficient to “justify an inference or probable connection” that Mr Nobbs suffered the alleged injury to the thoracic spine arising out of the alleged incident. Attention is invited to the material “outlined in the s 74 notice”, the submissions filed in the Commission on 7 August 2008 and submissions recorded in the transcript of proceedings made by ACI’s Counsel at the arbitration hearing, “to establish the evidence did not justify an inference of probable connection between the injury to the thoracic spine and the alleged incident.” It further submits that there is no contemporaneous evidence that Mr Nobbs received treatment or complained of an injury to the thoracic spine prior to being examined by Dr Patrick.
ACI goes on to submit that the Arbitrator’s decision contains findings of fact that actually support its proposition that the evidence does not support a finding that Mr Nobbs suffered an injury to the thoracic spine arising out of the alleged incident. It notes that the Arbitrator said:
“I want to, firstly, deal with the submissions of Mr Baker, who has thoroughly, very thoroughly taken me through the reports of various doctors who treated him, both general practitioners, doctors he referred to, organisations like Accent Rehabilitation, who have consistently referred to the applicant’s injury being to his lumbar spine, and also that all the scans – and I accept this – all of the scans, x-rays, CT scans and MRI scans, have been of the lumbar spine. That evidence is consistent throughout all the reports …
In this case I accept that the preponderance of the evidence is that the applicant was injured in the mid-low back region and that was the site of numerous investigations.”
ACI submits that the Arbitrator’s reliance on Dr Patrick’s opinion and the degenerative changes outlined in the MRI of the lumbar spine “dated 14 February 2007 at the T12/l1 level” is at odds with all the other treating medical evidence, contemporaneous medical evidence and other medical opinion “that the alleged incident only resulted in the respondent worker suffering injury to the lumbar spine.”
Submissions on appeal by Mr Nobbs
Mr Nobbs submits that the grounds of appeal are inadequate in “identifying any specific ground and do not in any event, disclose an error or law or jurisdiction.”
He disputes ACI’s contention that he did not suffer injury to his thoracic spine due to the injury sustained on 31 October 2004. He submits:
“[The Arbitrator] had proper regard to the findings noted on the MRI dated 14 February 2007, the Applicant’s statement and Dr Patrick’s reports dated 26 July 2007 and 31 March 2009. There was accordingly, sufficient evidence to entitle the Arbitrator to find as he did.”
Mr Nobbs puts forward the following material in support of the Arbitrator’s findings that he did suffer injury to this thoracic spine on 31 October 2004:
“a)The MRI scan of 14 February 2007 shows the Respondent Worker has suffered injury to the thoracic spine. It notes that there is a Schmorl’s node formation at the T 12 level of the spine.
b)Dr Patrick’s clinical observation of the Respondent Worker on 24 February 2007 shows the worker suffered injury to the thoracic spine on 31 October 2004. Also on page 3 of his report dated 26 July 2007 he notes the thoracic lumbar spine is stiff and that there is significant muscle guarding at the mid-lower thoracic spine.
c)Dr Silver [sic] in his report dated 25 October 2007 only concerns himself with the L4/5 area of the spine. However he notes in his report:
‘I would not be surprised to see such small nodes formation in the thoracic spine imaging studies if and when they are done.’
Dr Silver [sic] fails to turn his mind to the scan of the T 12 level of the thoracic spine when there is in fact a scan of the thoracic T 12 area.
d)The Respondent Worker’s statement at paragraph 6 states
‘I fell backwards, impacting forcibly with my thoracic and lumbar region at the edge of the corner of the pallet.’
e)Dr Patrick in his report dated 31 March 2008 notes at page 2
‘Imaging studies have demonstrated some end plate irregularity at the thoracolumbar region.’”
Mr Nobbs submits that the Arbitrator did not fall into legal error as claimed by ACI. He states that the use of the words “benefit of the doubt” is not an attempt by the Arbitrator to espouse a legal principle. “He clearly refers to the legal test required by quoting Chief Justice Spigelman in McGuiness.” He goes on to say that although the words “benefit of the doubt” may be a clumsy use of language it is very clear that at paragraph 35 of the Arbitrator’s decision, he was aware of the standard of proof to be applied. “Further at line 45 his quote of Justice Mason in Fernandez v TubeMakers (1975) 2 NSWLR 190 clearly shows he was aware of the test to be applied.”
Mr Nobbs submits that the Arbitrator was well aware of, and applied the correct approach, to come to a finding that on the balance of probabilities, that he sustained an injury to the thoracic spine on 31 October 2004. “The Arbitrator’s findings were sufficient to satisfy the common sense approach to causation as mentioned by Chief Justice Spigelman in McGuiness. The Respondent therefore submits that the Arbitrator did not err in concluding the Respondent Worker suffered injury to the thoracic spine on 31 October 2004.”
Review of the evidence
The two issues to be determined on a review in this appeal are whether Mr Nobbs sustained a compensable injury to his thoracic spine in the workplace incident on 31 October 2004 or 1 November 2004, and whether the Arbitrator fell into error in point of law as alleged. It is useful to review the evidence under those relevant headings.
Injury
In his Statement filed in the Commission on 19 April 2008, with the ‘Application to Resolve a Dispute’, Mr Nobbs states that on 31 October 2004 or 1 November 2004, while in the course of his duties, he fell backwards “impacting forcibly with my thoracic and lumbar region on the edge or corner of a pallet.” He maintains that he sustained significant abrasion at the thoracic and lumbar region. He also gave details of disabilities that he continued to suffer at that time (see [9] of these Reasons, above).
Mr Nobbs’ ‘Claim for Permanent Impairment’ dated 8 August 2007 includes “Injury to thoracic and lumbar spine” under the heading “Injury Details”. In his later ‘Workers Compensation Claim’ dated 20 October 2007 the “Injury Details” are specified as “Lower back pain in L4 & L 5. Continual back pain. Small graze on back which is now a scar.” He states in this document that he fell backwards onto some empty pallets “hitting my back on pallets.”
The various WorkCover medical certificates in evidence simply make general reference to back pain or back injury. However, the certificates dated 1/11/2004, 30/5/2005, 30/1/2006, 20/2/2006, 20/3/2006, 20/4/2006 and 14/9/2007 all indicate a diagnosis, “Soft tissue injury lumbar spine”. There is no mention in these certificates of injury to Mr Nobbs’ thoracic spine.
Dr Patrick
In his report dated 26 July 2007, Dr Patrick says in connection with Mr Nobbs’ thoracic spine:
“Ian Nobbs complains of ongoing troublesome back pain – varying in severity – at the lumbar spine and lower thoracic spine, with some radiation of symptoms into right groin/scrotal regions and right lower limb to some extent, ever since the fall of October 2004. Prior to this, he had no back symptoms whatsoever.”
Dr Patrick goes on to describe Mr Nobbs’ current symptoms as continuing low back pain, radiating across the mid/low lumbar region of the spine. He adds, “He also has mid/lower thoracic back pain and tightness. He has some occasional feelings of muscle spasm. He [sic] not infrequently has pain radiating towards the right groin and right scrotal region. This is brought on significantly by sitting too long on the forklift.” Dr Patrick assessed Mr Nobbs as having a net 4% whole person impairment in respect of injury to his thoracic spine.
In his report of 31 March 2008, Dr Patrick states that the “clear history as given” by Mr Nobbs is back pain varying in severity at the lumbar spine and lower thoracic spine, with some radiation of symptoms into the right groin/scrotal regions and right lower limb to some extent, ever since the fall of October 2004. He went on to say:
“When examined by me on this occasion there were supportive clinical findings on examination (second last paragraph, page 3 my substantive report of 26 July 2007), “…significant muscle guarding is evident paravertebrally ad mid/lower thoracic spine, and also mid/low lumbar spine more marked to the right of the mid line.”
He also reports:
“Imaging studies have demonstrated some endplate irregularity at the thoracolumbar region. Some individuals are more prone to ongoing significant symptomology at both thoracic and lumbar spine following incidents of injury such as has occurred on 31 October 2004. I believe the significant hyperextension and/or lateral flexion injury to Mr Nobbs’ spine sustained at the time of the frank work accident of 31 October 2004 has been likely to result in both lower thoracic and lumbar spinal symptoms, notwithstanding that the thoracic spinal region is somewhat more fixed than lumbar and cervical spinal regions. The lower thoracic spine is contiguous with the lumbar spinal region, and the injured patient would usually not be anatomically literate to the extent of using terms such as lower thoracic region, lumbar region, etc. … It is likely that the injury to the thoracic spine has been largely facet joint injury with ongoing pain and guarding.”
He concludes by stating, “It is not inconsistent that there has been no actual imaging study of the thoracic spine itself.”
Dr Silva
Dr Silva first provided a medico-legal report dated 1 May 2006. He states amongst other things, “There is no new injury on 6.2.06 as recorded in your letter to me and he has not taken any time off work since returning to work after the annual holidays on 1.2.06.”
Dr Silva opines that the injury of 30.10.04 is an aggravation of pre-existing degenerative disease of a Schmorl’s node formation at L4 and L5, but with no previous injury. He makes no mention of injury to the thoracic spine and concludes his report in the following terms:
“I think the main problem with Ian Nobbs is due to the development of back pain and stiffness if he sits for long periods of time like when he drives the forklift inside the factory where he is called upon to sit non-stop from 6.45 to 11.45 am, and I would accept that as reasonable in view of the Schmorl’s node formation and degenerative disease at L4/5 and L5/S1, but he remains fit to drive the forklift outside loading trucks because when he does that he has the option of getting himself off the forklift and stretching himself.”
In a separate letter to the Insurer of the same date, Dr Silva states:
“Ian Nobbs’ back injury of 30.10.04 has reached maximum medical improvement and he has been assessed to WorkCover Guidelines and AMA Edition Guidelines. Because he has full symmetrical painless lumbar spine mobility in all directions with full straight leg raising and noneurological problems, he fits into DRE lumbar category 1 with 0% whole person impairment. He does not describe any further back injury on 6.2.06.”
In his report of 18 October 2007, Dr Silva states that he saw Mr Nobbs on the previous day. He states that Mr Nobbs was “at a loss” to understand why he had lost his job, as he had not had any time off work. He said that Mr Nobbs indicated that he had not been required to drive the forklift inside the factory, but continued to drive it outside of the factory. He had consulted his own doctor, Dr Jisani on 19 June 2007, who gave him WorkCover Certificates suggesting that he could not drive the forklift in the factory but could do so, outside of the factory. Dr Silva reported that Mr Nobbs informed him that if he sits for an hour non-stop he experiences back pain, but obtains relief by standing and stretching. Mr Nobbs informed him that driving the forklift outside of the factory was well within his capacity and could not understand why he had been dismissed. Dr Silva states, “He described his back pain as between L 1 and S 1 and not anywhere else. He has not described any pain radiating down either leg, except that occasionally he would get some pins and needles in the right leg only.” There is no mention of injury to the thoracic spine in this report.
Dr Silva provided a further report at the request of the Insurer, dated 25 October 2007. In response to a specific question about the thoracic spine, he replied:
“During the two consultations with me he only located pain in the lumbar spine which was the site of pre-existing degenerative condition called Schmorl’s node formation. He had not complained of the thoracic spine. The imaging studies were only of the lumbar spine and not of the thoracic spine. It is not uncommon to find similar Schmorl’s node formation or degenerative changes in the thoracic spine as well as the lumbar spine. I would not be surprised to see such Schmorl’s node formation in the thoracic spine imaging studies if and when they are done.
Therefore his complaints to me on the two occasions he saw me has always been in the lumbar spine and not in the thoracic spine.”
He added that as far as the thoracic spine is concerned, because there was no complaint of a thoracic spine injury, the “inevitable conclusion is that there is zero thoracic spine WPI for the injury of 01/11/2004.” Dr Silva saw no reason why Mr Nobbs could not continue to drive the forklift outside of the factory, loading and unloading cargo.
MRI scan 14 February 2007
The MRI scan report dated 14 February 2007, provided by Penrith Imaging (per Dr Greg Markson), was specifically taken into account by the Arbitrator. It states, in part:
“Findings: The conus terminates at L1 and appears normal. The T12/L1, L1/2, L2/3, L3/4, L4/5 discs are dehydrated, in keeping with degenerative change and there are Schmorl’s node involving the end plates at virtually all levels, with some associate reactive changes involving the end plates, particularly along the superior end plate of L5. The discs themselves are otherwise intact.
At the L5/S1 level, there is a small left paracentral disc protrusion, causing some narrowing of the lateral recess where there is potential impingement of the left S1 nerve root. There is no central canal stenosis.
There are no areas of central canal stenosis or foraminal narrowing
COMMENT:
Degenerative disc disease and Schmorl’s node end plate formation at multiple levels. Small left paracentral disc protrusion at L5/S1. No cause for right sided sciatica identified.”
The Arbitrator
At T32 lines 46-55, the Arbitrator makes comment upon the balance of the medical evidence that was before him. He states:
“I want to, firstly, deal with the submissions of Mr Baker, who has thoroughly, very thoroughly, taken me through the reports of the various doctors who treated him, both general practitioners, doctors he was referred to, organisations like Accent Rehabilitation, who have consistently referred to the applicant’s injury being to his lumbar spine, and also that all of the scans – and I accept this – that all of the scans, X-rays, CT scans and MRI scans, have been of the lumbar spine. That evidence is consistent throughout all the reports.”
The Arbitrator then deals in particular, with the various reports submitted by Dr Silva and Dr Patrick. He states at T33, lines 48-51:
“As I say, I note that all of the material is consistent with that being in the lumbar spine. However, we have Dr Patrick’s report, and Dr Patrick sees the worker a year after Dr Silver [sic], first seeing him on 26 July 2007.” (Emphasis added).
I have perused the documentary evidence to which the Arbitrator refers and I agree with his observation that it relates to injury to the lumbar spine, and not the thoracic spine. This evidence is not particularly contentious and there is no need to detail it here.
It is true that Dr Patrick examined Mr Nobbs and saw him again after Dr Silva. However, as Mr Baker (Counsel for ACI) points out at T28-32, there was no complaint or investigation concerning the thoracic spine until this time, nearly three years after the incident from which that injury is alleged to have arisen. He states at T28, lines 25-53:
“To Dr Patrick in 2007, three odd years after the, or two and three-quarter years after the event, he first makes a complaint of having some thoracic pain, for the first time. Did he injure it in October-November ’04? We’d say, manifestly not, on the balance of all the other material you’ve seen. Did he complain of it to Dr Patrick? Apparently. And Dr Patrick went with it. But is it injured at the time? In our respectful submission, you cannot be convinced on the basis of all this material that was the case. And he does say – Dr Patrick – having gone through all the X-ray imaging and the like, and he takes the view that the opinion on page – the last page of that same report:
He has, I believe, sustained a significant back injury when he has fallen backwards forcibly on to a pallet at work. As well as the direct trauma, he probably sustained some degree of hyperextension-lateral flexion injury with facet joint injury and probably some disc injury at L4/5 and L5/S1 level occurring on the background of some degree of pre-existing but totally asymptomatic Scheuremann’s spinal osteochondrosis, a relatively common – one in 25 males – condition.
So that’s his actual diagnosis. Now, he chooses on the basis of the complaints made to him then to then assess the thoracic spine, but the actual diagnosis is in the lumbar area.”
Mr Baker further states at T29, line 51 to T30, line 2:
“Now, the problem with that is if the symptoms are the reason why he now says that it is injured in the episode, my question is: Where were the symptoms for the previous and two and three-quarter years? They were non-existent. He didn’t complain to anyone in two and three-quarter years about anything in the thoracic spine, so it is a non-sequitur, with great respect to Dr Patrick, to turn around and assert that he injured his thoracic spine in those circumstances, when there are manifestly no symptoms whatever in that period of time.”
Mr Nobbs relies in part, upon the MRI scan of 14 February 2007. He notes that there is a Schmorl’s node (herniated disc) formation at the T/12 level of the spine, indicating injury to the thoracic spine. I note at T30-31 there is some discussion as to the relationship between the lumbar and thoracic spine. Mr Marsh (Counsel for Mr Nobbs) makes a number of statements about this and says at T31, lines 14-27:
“ - - and it comes after the report from Dr Patrick. So, frankly, you know, leaving that point aside, I think the second point – yes – was the question of whether – this is the question of whether the T12 is actually part of the [inaudible]. The only thing I can say about that is: one, we have no medical evidence about it, and I appreciate that, you know, practitioners in this area are, you know, very familiar with these things, but, that said, the evidence of all the imaging is that when the lumbar spine is considered it’s not the same. It’s not the – T12 doesn’t rate a mention in any of them, and, indeed, there is the comment made by Dr Patrick in his report of 31 March ’08, and this is on the final page of his report - - .”
Mr Marsh further submits at T31, lines 46-52:
“And if you examine all of the other radiology, there is no mention of T12/L1, and, indeed, it’s fairly consistent that it will just be the L1 that is talked about, for example, or L2. Now, having said that, it doesn’t seem that other x-rays refer to particular levels but, that said, in my respectful submission, you would regard the MRI as dealing with the thoracic spine.”
Taking Mr Baker’s point again, the MRI scan was done in February 2007, while the work incident occurred on 31 October or 1 November 2004.
The difficulty for Mr Nobbs is that even if there is some evidence of injury to the thoracic spine in 2007, there is an inordinate amount of time between the workplace incident and any apparent complaint to anyone, including apparently his own treating doctor, about suggestions or manifestation of injury to the thoracic spine. That is not the case about the injury to the lumbar spine, which at all times, has been the focus of medical investigation and treatment, as the injury that was sustained and complained of, by Mr Nobbs arising out of and in the course of his employment. Mr Nobbs’ own statement and claim documents that make mention of injury to the thoracic spine do not assist to explain this lengthy delay, as they were completed in 2007, some (nearly) three years after the workplace incident. There is no apparent explanation for this significant lapse of time before the claim of injury to the thoracic spine was raised.
If Mr Marsh is correct and “you would regard the MRI as dealing with the thoracic spine”, it is reasonable to conclude, on a similar basis, that the many other exhaustive tests and medical investigations that were conducted, would have thrown up some indications of any injury to the thoracic spine, after the occurrence of the workplace incident from which the injury allegedly arose. However, this is clearly not the case.
The Arbitrator unequivocally states that most of the evidence before him relates to injury to the lumbar spine and not to the thoracic spine (see T35, lines 26-31). Dr Patrick’s evidence does support Mr Nobbs’ case with regard to injury to the thoracic spine, but depending upon the view taken about the MRI scan, it essentially stands alone. He expresses his opinion about thoracic spine injury, but does not present his views as an actual diagnosis, as he does about injury to the lumbar spine, of which, by contrast, there is ample evidence.
However, in this regard, the Arbitrator states at T36, lines 42-51:
“In this case I accept that the preponderance of the evidence is that the applicant was injured in the mid-low back region and that was the site of the numerous investigations. However, the objective evidence of the MRI does touch upon the lower end of the thoracic spine and, as Dr Patrick, who finds guarding of the thoracic spine, says:
The lower thoracic spine is contiguous with the lumbar spinal region.”
The Arbitrator does not say whether and/or to what extent the “objective evidence” in the MRI scan reveals degenerative changes or injury to the thoracic spine. It is difficult to appreciate that “numerous investigations” of the mid-low back region, by a range of doctors and others, over a period of nearly three years, would reveal injury to the lumbar spine, but not the thoracic spine, particularly at the “lower end”, if such injury arose at the same time, from the same incident, and was present all along as alleged.
The Arbitrator goes on to say, at T36, lines 56 and T37, lines 1-18, that in fairness to Mr Nobbs:
“although the injury is probably sustained at the very lower end of the thoracic spine, for the purposes of segmentation, I’m prepared to find that the applicant has sustained an injury to the thoracic spine, although at the very end point of the thoracic spine, such that the applicant should be found to have sustained an injury which can be referred to an AMS. In doing this, I am mindful of the material that Mr Baker has taken me through, and I accept it, but also on the basis of fairness to the applicant, given that the matter is going along for assessment, it’s well within the realm of an AMS to note my decision that he has sustained an injury to the thoracic spine but yet find that the assessment of that is zero per cent. But I do believe the applicant should be awarded the benefit of the doubt on the basis of the decision of the chief Justice that probably he has sustained an injury there which should be sent on for assessment and, therefore, my decision is the applicant sustained both injury to his lumbar spine and his thoracic spine which should be referred to an AMS, and I will make the referral.”
While I note that the Workers Compensation legislation is beneficial legislation, an Applicant must still establish his or her case on the balance of probabilities in order to succeed. There is ample evidence of exhaustive investigation and ongoing treatment of injury to Mr Nobbs’ lumbar spine over a continuous period of time since the date of injury. However, for some reason, the issue of injury to the thoracic spine only emerged in 2007. It is not supported by most of the evidence, or the weight of the evidence, put forward in this matter. In any event, there is little if any evidence to indicate that any injury to the thoracic spine that may have been identified in 2007 was in fact sustained in the workplace incident that occurred on 31 October or 1 November 2004. In my view, that necessary connection has not been made.
While I understand the Arbitrator’s desire to be fair to Mr Nobbs, and his rationale for referring the matter to an AMS for assessment along with the referral of the lumbar spine, it is my view that on the balance of probabilities, the evidence does not support his finding of injury to the thoracic spine, arising out of the workplace incident. I find accordingly.
Error of law
I agree with Mr Nobbs that the Arbitrator did not fall into error in point of law, precisely as alleged. It is obvious from his discussion recorded in the transcript that he used the term “benefit of the doubt” loosely as Mr Nobbs has said, or perhaps more accurately, he used the term in a general sense - not as a term of art or legal principle. Furthermore, it is clear that the Arbitrator understood the applicable legal principles set out in McGuiness and Fernandezv Tubemakers of Australia Ltd [1975] 2 NSWLR 190, and what was being said in those cases. However, I do not agree with the Arbitrator that the “probable connection” required by those authorities is established in this matter. In my view, the evidence does not support the inference of such a connection being made, for the reasons outlined above.
In endeavouring to “be fair” to Mr Nobbs it would appear that the Arbitrator decided to refer the matter to an AMS, notwithstanding the evidence put forward by ACI, which the Arbitrator essentially acknowledged as being relevant and correct. It was convenient to refer both lumbar spine and thoracic spine to the AMS, but in my view, the Arbitrator fell into error in failing to weigh up and evaluate the evidence properly prior to making the referral. I find accordingly.
CONCLUSION
I find that Mr Nobbs did not suffer a personal injury to the thoracic spine on 31 October or 1 November 2004 arising out of and/or in the course of employment and for which that employment was a substantial contributing factor. For the sake of completeness, I find further that the late documents filed in the Commission on 8 July 2008 were admitted by consent, as stated by the Arbitrator in his Orders. It is not necessary to include and/or translate either of these findings in/into the Orders made in these Reasons.
.
DECISION
The appeal is successful. Paragraphs 1, 2, 3 and 4 of the decision of the Arbitrator dated 10 July 2008 are revoked and the following decision is made in its place:
“1.There is an award for the Respondent Worker in respect of his claim for injury to, and permanent impairment of the lumbar spine.
2. There is an award for the Appellant Employer in respect of the claim for
injury to, and permanent impairment of the thoracic spine.
3. I remit this matter to the Registrar to arrange for an assessment by a relevant
Approved Medical Specialist, of the degree of permanent impairment resulting from the Respondent Worker’s injuries to his lumbar spine.
Paragraph 5 of the decision of the Arbitrator is confirmed and re-numbered paragraph 4.”
COSTS
ACI has requested an order that Mr Nobbs is not entitled to costs of the proceedings before the Arbitrator, or of this appeal. No reasons are advanced for this submission. The dispute in the Commission was wider and of more substance than the issue that finally went to arbitration, and that came before me on appeal.
In the circumstances, it is appropriate that the costs order made by the Arbitrator should stand, and I so order. However, having regard to the outcome of this appeal, I make no order as to costs of the appeal.
Gary Byron
Deputy President
23 October 2008
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEPUTY PRESIDENT GARY BYRON OF THE WORKERS COMPENSATION COMMISSION.
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