Albury City Council v Gow
[2006] NSWWCCPD 319
•27 November 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Albury City Council v Gow [2006] NSWWCCPD 319
APPELLANT: Albury City Council
RESPONDENT: Trevor Joseph Gow
INSURERS:i. GIO Workers Compensation (NSW) Limited – on risk 3.6.86 – 31.3.02
ii.StateCover Mutual Limited – on risk 1.4.02 to date
FILE NUMBER: WCC1731-06
DATE OF ARBITRATOR’S DECISION: 7 June 2006
DATE OF APPEAL DECISION: 27 November 2006
SUBJECT MATTER OF DECISION: Adequacy of evidence for a finding of ‘injury’ resulting from ‘nature and conditions of employment’. Sections 4 and 16 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Bartier Perry Solicitors
Respondent: White Barnes Solicitors
ORDERS MADE ON APPEAL:
1.Paragraphs 1 to 4 inclusive of the decision of the Arbitrator dated 7 June 2006 are revoked and the following decision is substituted:
Award in favour of Albury City Council in the interests of StateCover Mutual Limited
2.Paragraph 5 of the decision of the Arbitrator dated 7 June 2006 is confirmed.
3. No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
Trevor Joseph Gow (‘Mr Gow’) was employed by Albury City Council (‘the Council’) as a machine operator commencing in about 1979 until his resignation on 3 March 2005. His duties principally involved the operation of ride-on lawn mowers, whipper snippers and edgers.
Concurrently, commencing in about 1986, Mr Gow was employed as a cleaner at the Albury K-Mart store until he resigned from that employment in September 2004.
Mr Gow claimed to have suffered injuries to his back, right hip and right knee due to a number of frank incidents and the nature and conditions of his employment with the Council. The injuries occurred on numerous dates from November 1989 to when he resigned from the Council in March 2005.
In September 2004, Mr Gow ceased employment with the Council to undergo an arthroscopy on his right knee. He did not return to work with the Council and ultimately resigned on 3 March 2005.
The Council was insured by GIO Workers Compensation (NSW) Limited (‘GIO’) from 3 June 1986 to 31 March 2002. Thereafter, the Council was insured by StateCover Mutual Limited (‘StateCover’).
As a result of negotiations between Mr Gow and the GIO during 2005, those parties resolved the permanent impairment dispute and an agreement pursuant to section 66A of the Workers Compensation Act 1987 (‘the 1987 Act’) was executed on 16 January 2006. Briefly, the terms of that agreement provided that the GIO would pay Mr Gow $6,000.00 in respect of 10% permanent impairment of the back, $18,750.00 in respect of 25% permanent loss of use of the right leg at or above the knee, including any loss below the knee, and $15,000.00 for ‘pain and suffering’ pursuant to the provisions of section 67 of the 1987 Act.
On 7 February 2006 Mr Gow filed an ‘Application to Resolve a Dispute’ in the Commission against both insurers seeking weekly payments of compensation from 12 September 2004 to date and continuing together with medical, hospital or related expenses “in relation to right knee surgery” pursuant to the provisions of section 60 of the 1987 Act. It was noted that the GIO had continued to pay medical expenses in relation to the injuries, the subject of the section 66A agreement.
On 20 February 2006 the Council in the interests of StateCover filed a ‘Reply’ listing as the principle issue in dispute whether or not Mr Gow sustained any injury in the course of his employment with the Council after 31 March 2002 when StateCover came on risk. As a consequence, StateCover denied liability for the claim.
On 13 April 2006 the Council in the interests of GIO also filed a ‘Reply’ disputing Mr Gow’s entitlements as claimed.
The parties attended a conciliation/arbitration hearing on 22 May 2006. The Arbitrator noted that at the conclusion of the conciliation conference, Mr Gow had settled his weekly compensation claim and medical expenses dispute against the GIO. The basis of that agreement was that the GIO had agreed to voluntarily pay weekly payments of compensation at the rate of $300.00 per week pursuant to section 40 of the 1987 Act from 12 October 2004 to date and continuing, and to pay section 60 expenses “referable to his right hip and back”. As a consequence, Mr Gow discontinued proceedings against the GIO.
The only remaining matter in dispute was then with StateCover in respect of its liability to pay medical and related expenses and weekly payments for incapacity as a consequence of him undertaking an arthroscopy procedure on his right knee in September 2004.
No agreement could be reached between Mr Gow and StateCover on this issue, and the matter proceeded to arbitration hearing. The GIO took no part in the arbitration hearing.
The issues in dispute were identified by the Arbitrator as follows:
“1. Whether the Respondent is liable for the medical and related costs and subsequent incapacity for employment associated with Mr Gow undertaking an arthroscopy to his right knee in September 2004?
2. If the answer to the first issue is in the affirmative, what weekly payments of compensation would Mr Gow be then entitled?”
On 7 June 2006 a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued. The decision of the Arbitrator was as follows:
“1. That the Respondent (indemnified by StateCover Mutual Limited) pay the Applicant weekly payments of compensation pursuant to s.40 of the Workers Compensation Act 1987 of $323.00 per week from 12 September 2004 to 30 September 2004.
2. That the Respondent (indemnified by StateCover Mutual Limited) pay the Applicant weekly payments of compensation pursuant to s.40 of the Workers Compensation Act 1987 of $328.90 per week from 1 October 2004 to 11 October 2004.
3. That the Respondent (indemnified by StateCover Mutual Limited) pay the Applicant weekly payments of compensation pursuant to s.40 of the Workers Compensation Act 1987 of $28.90 per week from 12 October 2004 to date and continuing in accordance with the Act.
4. That the Respondent (indemnified by StateCover Mutual Limited) pay the Applicant’s s.60 of the Workers Compensation Act 1987 medical and related expenses in respect to the Applicant’s right knee.
5. That the Respondent pay the Applicant’s costs as agreed or assessed. Both GIO Workers Compensation (NSW) Limited and StateCover Mutual Limited to pay the Applicant’s costs by equal proportion.”
On 7 July 2006 the Council in the interests of StateCover filed an ‘Appeal Against Decision of Arbitration’. StateCover claims that:
“The sole basis for this Appeal is the question of whether the Respondent worker sustained injury in the course of his employment with the Appellant on or after 31 March 2002. The Appellant submits that there was no evidence upon which the Arbitrator could make a finding of injury in the course of employment on or after 31 March 2002.”
On 10 August 2006 Mr Gow filed a ‘Notice of Opposition to Appeal’. Briefly, Mr Gow submits that the Arbitrator’s determination was open to him on the evidence before him and that his decision ought be confirmed. It is also noted that Mr Gow claims that the Commission has no jurisdiction to determine the appeal since it fails to comply with the requirements of section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
ON THE PAPERS REVIEW
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.”
Both parties submit that the appeal is suitable for a determination ‘on the papers’.
In the present case, I am satisfied that I have “sufficient information” within the meaning of section 354(6) to determine the issues raised ‘on the papers’, and that this is the appropriate course in the circumstances. I have before me the Arbitrator’s ‘Statement of Reasons’, all the evidence before him, including the transcript, the Commission files, and the detailed submissions by both parties on appeal. I have also had regard to the factors relevant to a determination ‘on the papers’ as set out in Practice Direction No. 1.
LEAVE TO APPEAL
Before proceeding to deal with an appeal, the Commission must determine whether the Application meets the requirements of section 352 of the 1998 Act.
Section 352(2) of the 1998 Act provides as follows:
“(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 $5,000.00 (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”.
StateCover submits that the entire award against it is in dispute. Although the award as from 12 October 2004 is only at the rate of $28.90 per week, that translates to approximately $1,500.00 per annum, and Mr Gow is 57 years of age. On that basis, it is claimed that ongoing compensation will exceed the $5,000.00 threshold. In addition, the transcript records that, although Mr Gow sought a “general order” in relation to his claim for medical expenses, they were identified at the date of the hearing to be in the order of $2,200.00.
Mr Gow submits that the award does not satisfy the requirements of section 352(2) of the 1998 Act since the amount ought be calculated either at the date of the initial decision of the Arbitrator or the date of notice of appeal.
The critical component of section 352(2) in this particular case are the words “at issue”. There have been a number of decisions of the Commission on this point. It is clear that purely procedural decisions do not pass the threshold such as a decision to adjourn a telephone conference (see Tagg v International Flavours and Fragrances (Australia) Limited [2003] NSWWCCPD 5. The decision must have a real capacity to put the award of compensation in issue in the appeal. (See Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7).
The award of compensation in this case is expressed to be “to date and continuing in accordance with the Act.” That implies that StateCover’s liability extends to Mr Gow’s entitlement to benefits until the relevant retirement date. In that context, the amount “at issue” clearly satisfies the threshold requirements of section 352(2) such that the Commission has jurisdiction to determine the appeal.
The second point to consider in granting leave to appeal is whether or not the appeal application was filed within the time limits prescribed in section 352(4) of the 1998 Act, ie, “… within 28 days after the making of the decision appealed against.”
StateCover’s appeal was initially filed on 7 July 2006. It was rejected apparently for failure to comply with section 352(4). It was resubmitted and accepted on 12 July 2006 when further submissions were filed by StateCover in favour of granting an extension of time to appeal.
It is noted that no issue is taken by Mr Gow on this point.
In its submissions for an extension of time, StateCover claims that the Arbitrator’s decision dated 7 June 2006 was not received by it until 13 June 2006. StateCover’s solicitors concede that the appeal:
“… ought to have been lodged by 5 July 2006, but was not lodged until 7 July 2006. The date was incorrectly diarised for 28 days from receipt of the Arbitrator’s decision, rather than 28 days from the making of the decision being 7 June 2006.”
Rule 77 of the Workers Compensation Commission Rules 2003 (‘the Rules’) provides, in part:
“(1) A party to any proceedings applying for leave to appeal under section 352 of
the 1998 Act against a decision of an Arbitrator must lodge the application within 28 days after the making of the decision, or within such extended time for making the appeal as may be ordered under subrule (8).
(2)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.”
Rule 77 further provides, in part:
(8)The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek lave to appeal would work demonstrable and substantial injustice, by order extend the time for making appeal.
(9)A party who seeks an extension of time as referred to in subrule (8) must:
a.as soon as practicable give notice to the other parties of the intention to seek the extension, and
b.lodge and serve with the application for leave to appeal an application for the extension of time, including full details of the arguments to be put in favour of granting the extension.”
In the present case, I am satisfied that StateCover has complied with the requirements of Rule 77(9).
As Deputy President Byron said in Al Keffai v Famicorp Pty Limited [2006] NSWWCCPD 92:
“The Rules do not set out the factors to be considered in the exercise of the discretion to extend the time for filing an appeal against the decision of an Arbitrator. Nevertheless, the issue has been the subject of a considerable amount of judicial consideration. Ultimately, the discretion must be exercised to ensure that justice between the parties is achieved (Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’); Wykanak v Rockdale City Council & Ors [1999] NSWCA 65; Halliday v High Performance Personnel Pty Ltd (in Liquidation) (formerly SACS Group Pty Ltd (1993) 113 ALR 637).”
StateCover also submits that if leave to appeal is not granted, it would suffer demonstrable and substantial injustice since “… StateCover ought not be deprived of its rights of appeal by reason of an administrative error on the part of its representatives.”
Rule 77(2) is clear in its terms, nonetheless, it must be reconciled with the clear intention of the legislature to allow for defects of the kind contemplated by the insertion of Rule 77(8).
In the present case, I am satisfied with the explanation provided by StateCover’s solicitors as to the circumstances of the delay in filing the appeal. It was filed one day late, time running from 8 June 2006. In the circumstances, I consider that to lose the right to seek leave to appeal would indeed work demonstrable and substantial injustice to StateCover, particularly in circumstances where no issue has been taken by Mr Gow on this point.
Accordingly, I extend time for making the appeal in the instant case to 12 July 2006.
Leave to appeal is granted.
THE ISSUES IN DISPUTE
The only issue on appeal is whether there was any evidence upon which the Arbitrator could make a finding that Mr Gow suffered an injury within the meaning of section 4 of the 1987 Act in the course of his employment with the Council on or after 31 March 2002. StateCover does not challenge the Arbitrator’s assessment of Mr Gow’s entitlement, but merely the finding that he suffered injury.
SUBMISSIONS, EVIDENCE AND FINDINGS
Given the substance of StateCover’s appeal, it is important to closely examine the evidence before the Arbitrator. This might be conveniently dealt with in two parts, namely, the lay and factual evidence and the medical evidence.
The Lay and Factual Evidence
StateCover submits that of the three statements of Mr Gow annexed to his Application, dated 13 October 2004, 1 March 2005 and 8 June 2005:
“At no point in any of those statements does [Mr Gow] assert that he suffered an injury to his right knee arising from his employment with the Appellant. In fact, the only reference to a right knee injury in the statement of 1 March 2005 suggests the possibility that it may be a football injury.”
In his statement dated 1 March 2005, Mr Gow said this:
“I had right knee surgery in September 2004 at the hands of Dr Kirwan. I was not sure whether it was work related or due to a football injury and did not make any claim at all. I do not propose to do so.”
Mr Gow takes some issue with this ground of appeal. He submits that the reference to a “football injury” is an error in the statement and was discussed at the Teleconference and noted in the transcript. The nature of that error is not clear. The transcript records a submission to the Arbitrator from StateCover as follows:
“You’ll recall the discussions at the Teleconference about whether the knee injury might have been an old football injury, and I know Mr Gow has got a view about that which he expressed on the Teleconference, but it is in his statement. You will not find it in any of the records, any of the medical certificates, any reference to a knee injury arising out of or in the course of employment at all.”
There is no transcript of the Teleconference so that I do not know the nature of any apparent “error” with respect to this statement. Nonetheless, even if it was an “error”, the significant point made by StateCover in its submissions is that nowhere does Mr Gow assert that he suffered an injury to his right knee as a consequence of his employment with the Council.
In his Application, Mr Gow, when asked “describe how the injury occurred” stated as follows:
“In November 1989 the Applicant, whilst pruning trees on the nature strip, slipped on the wet surface and landed on his right side landing on his hip and suffering injury to his back. On and prior to 3 March 2005 the Applicant exerted effort and strain in the course and performance of his duties as a machine operator”.
Additionally, the injury description was “right hip/leg injury and back injury.” No allegation of a specific an injury to his right knee is made.
In his ‘Statement of Reasons’, the Arbitrator noted Mr Gow’s submissions on this issue at paragraphs 13 and 14 as follows:
“13.Mr Gow submits that whilst the right knee was not subject to any direct or frank incident during his 26 odd years service with the Council, nevertheless, … the nature and conditions of his employment and, to a certain but lesser extent, as a secondary sequalae of his hip/back injuries caused deterioration to his right knee to the extent that it required arthroscopy in September 2004.
14.Mr Gow pointed to the reports of Mr S Bass of Bass Human Resources Pty Limited dated 2 May 2006 and Dr P Limbers, Orthopaedic Surgeon dated 2 May 2006 as giving an adequate summary of Mr Gow’s description of duties during his period of employment.”
Mr Sebastian Bass, a gentleman apparently “… with extensive experience in Human Resources …” and holding a Bachelor of Science (Psychology) Degree, prepared a report at the request of the solicitors for the GIO dated 2 May 2006. The only reference to Mr Gow’s duties with the Council in that report is as follows: “His tasks were typically outdoors and included the operation of ride-on mowers, whipper snippers and edgers.” Dr Paul Limbers saw Mr Gow on 1 May 2006 again at the request of the GIO. In his report dated 2 May 2006, his comment on Mr Gow’s duties was as follows:
“He also indicated that his last job with the Council was to operate machines which cut grass, which were mowing machines which also required the use of a victa mower and these tasks he was unable to carry out.”
It is noted that Mr Gow did not give any oral evidence at the Arbitration hearing to supplement his written statements. The Arbitrator’s statement at paragraphs 13 and 14 are a mere summation of Mr Gow’s “submissions”.
In essence, Mr Gow’s complaint, recorded by a number of the doctors whom he consulted, was that in or around 2002 he started to develop pain in his right knee and ultimately came to arthroscopy on 9 September 2004.
The Arbitrator summarised Mr Gow’s submissions at paragraph 21 in the following terms:
“Whether his underlying condition to his right knee prior to 2002 was caused by an old football injury or the nature and conditions of employment is not known to Mr Gow but he submits that the evidence supports his claim, on the balance of probabilities, that the nature and conditions of employment from 2002 to September 2004 contributed to the deterioration of his pre-existing condition and therefore the employment during that period was a substantial contributing factor to that deterioration.”
The “evidence” in support of Mr Gow’s claim, was scant indeed. StateCover was entitled to rely upon Mr Gow’s assertions contained in his statement in the absence of any oral evidence to either enhance or expand upon those statements.
It is also noted that Mr Gow did not at any stage lodge a claim for compensation for any injury during the course of his employment with the Council on or after 31 March 2002. It is noted he had lodged no less than 11 claims with the Council for various injuries between June 1984 and February 1999. The records of the Council were produced to the Commission in answer to a direction for production. Those records reveal no report of injury subsequent to March 2002.
Section 4 of the 1987 Act defines “injury” in the following terms:
“4 In this Act –
Injury –
(a)means personal injury arising out of or in the course of employment;
(b)includes –
i.a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor; and
ii.the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration …”
Section 9A of the 1987 Act came into effect on 12 January 1997. Subsection 1 provides that:
“(1)No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.”
Mr Gow submitted that his “injury” to his right knee fell within the provisions of section 16 of the 1987 Act. That section is in the following terms:
“16(1)If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease –
(a)the injury shall, for the purposes of this Act, be deemed to have happened –
i.at the time of the worker’s death or incapacity; or
ii.if death or incapacity has not resulted from the injury – at the time the worker makes a claim for compensation with respect to the injury; and
(b)compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
The purpose of section 16 is effectively to provide a mechanism for payment of compensation where an “injury” consists in the aggravation etc of a “disease”. The worker must nonetheless first show an “injury” within the meaning of section 4 of the 1987 Act, and the aggravation etc of the disease will be an “injury” only if the employment has been a contributing factor to the aggravation, etc.
Nowhere in these provisions is there a reference to “nature and conditions of employment” however, it is a term commonly used to describe an ‘injury’ which has occurred in the context of an aggravation etc of an underlying condition caused by work duties.
In the present case, as I have said, the evidence of the “nature and conditions” of employment with the Council in particular the impact of those duties on any underlying condition, was scant indeed. The onus was clearly on Mr Gow to demonstrate to the Arbitrator that he suffered incapacity and/or impairments as a consequence of the nature and conditions of his employment with the Council As I said in Issott v North Sydney Leagues Club Limited t/as Seagulls Club [2005] NSWWCCPD 38:
“It is not sufficient for a worker to merely cite the duties, i.e, ‘nature and conditions of employment’ in grounding an allegation of ‘injury’. Similarly, an allegation of ‘on going symptoms’ does not of itself constitute an ‘injury’. There must be clear evidence of aggravation, exacerbation, acceleration or deterioration by those duties to constitute ‘injury’.
In the present case, Mr Gow claimed that he noticed “symptoms” in his right knee in or about 2002. There is no need to doubt the truth of that statement however, it is also true to say that his evidence, together with documentary evidence describing his ‘duties’ fell short of the requirements of the sections to which I have referred.
Mr Gow was required to establish a real connection between his employment and the injury alleged. Employment must be a substantial contributing factor to the event giving rise to the aggravation, acceleration, exacerbation or deterioration of the disease rather than the path of the underlying disease itself. (See Rootsey v Tiger Nominees Pty Limited (2002) 23 NSWCCR 725 and Cant v Catholic Schools Office (2000) 20 NSWCCR 88).
Mr Gow was required to demonstrate positively that any incapacity resulted from the aggravation of what was generally described as an osteoarthritic condition of his right knee, rather than from the original disease.
In my view, the factual and lay evidence failed to discharge that onus. The question was then was whether the medical evidence was either adequate or sufficient to overcome this deficiency.
The Medical Evidence
Mr Gow’s medical evidence consisted of a number of medical certificates and a report of Dr Peter Isbister, Orthopaedic Surgeon, dated 8 March 2005, who examined him at the request of his solicitors.
There was no medical evidence or reports from Dr Kirwan who apparently performed the arthroscopy.
Dr Isbister recorded that Mr Gow had also been seen by a Dr Bartram, Orthopaedic Surgeon in Albury and a Dr Kemp, Rheumatologist. No reports from those doctors were in evidence.
Dr Isbister took a history that “… in November 1989 [Mr Gow] was pruning trees on the nature strip when he slipped on the wet surface and landed on the right side taking the weight on his hip. He complained of hip pain at that time.”
Dr Isbister then stated: “He continued with work as a machine operator and also developed back pain and right knee pain. The back pain has been producing referred pain to the right hip and leg.” Dr Isbister also referred to a number of radiological investigations. Dr Isbister concluded that Mr Gow had osteoarthritic and facet joint degenerative changes in his lower lumber spine “… contributing to referred pain in his buttocks and right leg.” He also diagnosed Mr Gow as suffering from early osteoarthritic changes in the right hip and that “his right knee has degenerative changes …” Dr Isbister concluded “… the present disability with the right hip can be attributed to the injury in November 1989 as described occurring in the course of his work.” He further stated “in my opinion Mr Gow has 20% permanent loss of efficient use of his right leg at or above the knee as a result of his hip condition. Loss of use of the pelvis has been included in the hip condition.” Dr Isbister concluded “in my opinion no specific aggravation has occurred since December 2001.”
Mr Gow also relied upon some medical certificates from a Dr Kruytbosch. In a certificate dated 1 August 2005, for example, Dr Kruytbosch described his injury as “osteoarthritis to lumbo sacral spine and ® hip following twisting injury while operating a pruning saw in 1994.” Later certificates made reference to pain “affecting right buttock extending to right popliteal …” Those certificates also noted that Mr Gow had been referred to a Dr Brett Todhunter. A report from Dr Todhunter dated 16 March 2006 was included late in the proceedings. Dr Todhunter saw Mr Gow on 24 February 2006 stating “… at which time he told me that his pain on the right hip and upper leg including the knee (my emphasis) had not really changed.” Dr Todhunter went on to comment on Mr Gow’s attempts to return to employment and his medication. He noted “function of his right hip seems to be reasonable”.
That was the extent of Mr Gow’s medical evidence.
GIO relied upon a report of Dr Paul Limbers dated 2 May 2006. Dr Limbers obtained a similar history of the incident in November 1989 noting “he slipped and landed on the right side of his back and on his hip on the ground …” Dr Limbers then noted “Mr Grow continued to work as a machine operator who was also complaining of right knee pain and arthroscopy of the right knee was performed in September 2004 which confirmed osteoarthritis.”
Dr Limbers also considered a number of radiological investigations, relevantly noting as follows:
“X-rays of both knees dated 8 September 2003 appeared to be normal but later x-rays dated 21 January 2005 showed early degenerative changes mainly in the right knee.”
Dr Limbers concluded: “The examination findings clearly indicate marked degenerative changes in the lumbo-sacral spine, both hips and the right knee.” His diagnosis was of “arthritis right knee and hips.” Dr Limbers stated:
“Mr Gow’s current injuries are due to the normal processes of wear and tear namely arthritis in both hips of [sic] the right knee and the normal degenerative changes in the lumbo sacral spine. They are not caused by result of injury sustained in the course of employment during the GIO’s period of risk or StateCover’s period of risk.”
GIO also relied upon a report of Dr Thomas Davis, Consultant Surgeon, dated 24 June 2005. Dr Davis obtained a somewhat different history. He noted:
“The date of the injury is 12 July 1994 as per doctor’s medical certificate … in the process of pruning trees on a nature strip the claimant slipped and lost balance, falling with his hip hitting the edge of the kerb and guttering.”
The summary of injuries and diagnosis made was “injuries to the right leg, hip and knee”.
Dr Davis only made reference to x-rays of the knees in January 2005. He noted:
“In 2002 the Claimant developed pain in the right knee and after failure of conservative treatment, the claimant was referred to an Orthopaedic Specialist, Dr D Kirwan, who performed a right knee arthroscopy on 9 April 2004.”
It is noted the parties conceded that the date of the arthroscopy was incorrect and should have been 9 September 2004.
Dr Davis concluded:
“In the normal course of the claimant’s work, he has suffered a number of injuries resulting in a traumatic osteoarthritis affecting the lower back, right hip and right knee.”
He diagnosed “multi-level degenerative disease of the lumber spine, traumatic arthritis of the right hip and degenerative disease of the right knee”. Dr Davis concluded:
“… as the Claimant’s injuries occurred before the changes to the Workers Compensation legislation effective 1 January 2002, the guides in place before that date would be used. As compared with a most extreme case, there is a 15% impairment of the back (lumbo-sacral spine) of which 10% can be attributable to the nature and conditions of the claimant’s employment … There is a 25% impairment of the right leg above the knee including any loss of function below the knee, the total amount being attributable to the nature and conditions of the Claimant’s employment and the alleged injury sustained resulting in a traumatic arthritis.”
The parties did not appear to dispute that the “alleged injury” referred to by Dr Davis was the fall involving the back and hip which he described as occurring on 12 July 1994.
The Arbitrator’s findings and reasons in respect of this evidence was set out at paragraphs 36 to 43 of the ‘Statement of Reasons’. He stated as follows:
“36.The medical evidence seems to suggest that whilst there is no doubt that Mr Gow suffered injuries to his right hip and back through a number of recorded incidents, there is very little in the way of any known or frank incident that had an effect on his right knee. Part of the evidence indicates that one of the problems with his right knee was caused in part by his right hip problems which have been there since at least 1994.
37.Another part of the evidence raises the possibility of an old ‘football injury’ being the cause of his knee problems that gave rise to requiring arthroscopic intervention.
38.I am prepared to accept that his right hip problem and the natural aftermath of that could have an effect on his right knee particularly if that particular knee was vulnerable through, perhaps, an old football injury.
39.I refer to the report of Dr Paul Limbers of 2 May 2006 to the legal representative of GIO… he states: ‘… x-rays of both knees dated 8 September 2003 appeared to be normal but later x-rays dated 21 January 2005 showed early degenerative changes mainly in the right knee’. I find that those radiological investigations indicate that ‘something’ likely occurred during September 2003 and January 2005 to Mr Gow’s right knee to demonstrate the changes apparent in the investigations. I am prepared to accept that the something was the nature and conditions of employment as claimed by Mr Gow.
40.On Dr Limber’s above report it is also interesting to note that GIO, following receipt of that report, voluntarily restored Mr Gow’s weekly payments and undertook to meet his medical and related expenses in respect of Mr Gow’s back and right hip and previously agreed to pay compensation for Mr Gow’s permanent impairment notwithstanding Dr Limber’s opinion that all the above, including Mr Gow’s right knee, were due to natural wear and tear and not caused by any injury at the work place. In view of the subsequent agreement between the parties I am prepared not to accept his opinion on liability.
41.In respect to Dr Isbister’s opinion that there was no aggravation of Mr Gow’s right knee during the period 2002 to 2004 as submitted by the Respondent I believe that Dr Isbister did not give such a definitive opinion but actually reported: ‘… in my opinion no specific aggravation has occurred since December 2001.’ I don’t believe Dr Isbister in stating that opinion is ruling out general aggravation caused by nature and conditions of employment.
42.In the absence of any other factor or factor raised as a possibility of the deterioration of the knee, as evidenced by the radiological investigations, I am prepared to accept that such was most likely substantially contributed to by the nature and conditions of Mr Gow’s employment.
43.I so find.”
The medical case presented by each party was not at all straight forward. X-rays in January 2005 certainly showed some pathology in the right knee, generally described as osteoarthritis. The issue to be determined was whether or not that ‘disease’ was aggravated etc by the ‘nature and conditions’ of Mr Gow’s employment with the Council.
Most of the medical reports focused on the impact of the fall in November 1989. Whilst Dr Davis made reference to the ‘nature and conditions’ of Mr Gow’s employment, it is important to note Dr Davis’ opinion that “… as the Claimant’s injuries occurred before the changes to the Workers Compensation legislation effective 1 January 2002, the guides in place before that date would be used.” As a consequence, Dr Davis considered that Mr Gow suffered a 25% impairment of his right leg “… attributable to the nature and conditions of the Claimant’s employment and the alleged injury sustained resulting in traumatic arthritis”. That then would suggest that the reference by Dr Davis to the “nature and conditions of the Claimant’s employment” was to employment prior to 1 January 2002.
It is noted that it was on the basis of the report of Dr Davis that the GIO wrote to Mr Gow’s solicitors advising of its preparedness to pay Mr Gow 25% permanent loss of efficient use of his right leg at or above the knee consistent with the findings of Dr Davis. As StateCover points out in its submissions, “… the resolution of the lump sum claim is consistent with injury before, and only before, 31 March 2002.”
In other words, the Arbitrator has failed to consider the comments of Dr Davis in the context of the time frame upon which his opinion was based.
The principal challenge StateCover makes to the Arbitrator’s determination on this issue is however his findings at paragraph 39 that “something” occurred during the period between September 2003 and January 2005. It is true that Dr Limbers noted that there appeared to be some change in the condition of Mr Gow’s knees between x-rays dated 8 September 2003 and those dated 21 January 2005. Dr Limbers noted that the later reports “… showed early degenerative changes mainly (my emphasis) in the right knee”. His report suggests the changes were bilateral although perhaps more marked on the right. Dr Limbers explained this change on the basis of “… the normal processes of wear and tear namely arthritis …”
StateCover submits that:
“The Arbitrator was prepared to accept that the ‘something’ was the nature and conditions of the Respondent Worker’s employment with the Appellant. To do so, is to express a medical opinion that the Arbitrator is not qualified to do, more so in the absence of any evidence, be it factual or medical, to support that conclusion. To further reiterate the point, in paragraph 41 the Arbitrator seeks to interpret Dr Isbister’s opinion in a manner that supports his findings, that cannot be supported by the evidence.”
Mr Gow submits that “… the Arbitrator is quite entitled to find that the obvious worsening of the right knee between 8 September 2003 and 21 January 2005 has happened. This is not a medical decision but a simple reading of a report and thus a finding of fact.”
Mr Gow’s submission is correct to the extent that the Arbitrator was entitled to conclude on the radiological evidence that there had been a deterioration in the condition of Mr Gow’s right knee in the period referred to however, his determination that he was “prepared to accept that the something was the nature and conditions of employment” and that “in the absence of any other factor or factors raised as a possibility of the deterioration of the knee … I am prepared to accept that such was most likely substantially contributed to by the nature and conditions of Mr Gow’s employment”, dismisses the other evidence. Dr Isbister, on whose opinion Mr Gow relied, attributed any loss of use of the right leg to the fall in 1989. That of course is a separate issue to that of ‘injury’, but his report did not specifically address whether the osteoarthritis in the right knee was a ‘separate’ injury. Dr Isbister considered that the “present disability” with the right hip was attributable to the injury in November 1989. No reference was made in that context to the right knee. His report is thus equivocal as to whether the right knee condition was as a consequence of the fall in 1989, or of some other source.
Dr Limbers considered that it was simply a manifestation of natural wear and tear. Dr Davis’ opinion was confined effectively to the nature and conditions of employment up to January 2002.
Thus it was incorrect for the Arbitrator to state that there was no “… other factor or factors raised as a possibility…” More particularly, there was simply no evidence from a medical perspective to demonstrate that the nature and conditions of Mr Gow’s employment between 1 April 2002 and September 2004 in any way contributed to the condition of his knee.
In addition, the Arbitrator’s statement that the GIO apparently “restored” weekly payments of compensation to Mr Gow does not appear to be borne out by the evidence before him nor indeed the parties’ submissions. The Arbitrator appears to have based his decision to reject Dr Limbers’ opinion “on liability” because of the actions of the GIO vis-a-vis Mr Gow following receipt of that report. However, it must be remembered that the GIO were no longer a party to the proceedings before the Arbitrator such that in my view, it was an inappropriate reference to Dr Limbers’ opinion in the context of the issues to be determined between Mr Gow and StateCover.
The Arbitrator’s reference to the opinion of Dr Isbister in paragraph 41 of his ‘Statement of Reasons’ to the effect that Dr Isbister was not “ruling out general aggravation caused by nature and conditions of employment” does not fit well with Dr Isbister’s ultimate conclusion that the loss of use of the right leg was as a consequence of the right hip injury. Again, it should be noted that Dr Isbister’s assessment is expressed in terms similar to Dr Davis, ie, in respect of a loss sustained prior to January 2002.
The totality of the evidence before the Arbitrator, particularly absent any reports from Dr Kirwan, did not support his ultimate finding that the nature and conditions of Mr Gow’s employment subsequent to 31 March 2002 caused an ‘injury’ to his right knee within the meaning of sections 4, 9A and 16 of the 1987 Act.
As Dixon CJ famously observed in Jones v Dunkel (1959) 101 CLR 298 at 305:
“But the law … does not authorise a Court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.”
In this case, the evidence supported the fact that Mr Gow had osteoarthritis in his right knee, but there were a number of possibilities for the cause of that condition. In my view, the Arbitrator’s determination reflected no more than a “guess” as to its cause in circumstances where the medical evidence in particular fell short of providing a reasonable basis for that conclusion.
This is particularly so given the absence of not only any report of injury by Mr Gow but of any reference to the impact of the ‘nature and conditions’ of his employment on his knee condition in his statements.
CONCLUSION
I accept StateCover’s submissions that there was no adequate evidence before the Arbitrator to support his finding that, on the balance of probabilities, Mr Gow sustained injury to his right knee in the course of his employment on or after 31 March 2002.
DECISION
Paragraphs 1 to 4 inclusive of the decision of the Arbitrator dated 7 June 2006 are revoked and the following decision is substituted:
Award in favour of Albury City Council in the interests of StateCover Mutual Limited
Paragraph 5 of the decision of the Arbitrator dated 7 June 2006 is confirmed
COSTS
I make no order as to costs of the appeal
Deborah Moore
Acting Deputy President
27 November 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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