Albury City Council v Gunton

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Albury City Council v Gunton [2011] NSWWCCPD 68
APPELLANT:		Albury City Council
RESPONDENT:		Warren James Gunton
INSURER:		StateCover Mutual Limited
FILE NUMBER:		A1-8360/10
ARBITRATOR:	Mr J Phillips SC
DATE OF ARBITRATOR’S DECISION:		15 June 2011
DATE OF APPEAL HEARING:		24 November 2011
DATE OF APPEAL DECISION:		30 November 2011
SUBJECT MATTER OF DECISION:		Failure to give reasons; injury; aggravation of disease; s 4(b)(ii) of the Workers Compensation Act 1987; determination of last employer who employed worker in employment that was a substantial contributing factor to the aggravation of the disease
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		Oral
REPRESENTATION:		Appellant:	Mr P Stockley, instructed by Bartier Perry
Respondent:	Mr I Judd, instructed by Slater & Gordon
ORDERS MADE ON APPEAL:		For the reasons given in this decision, the Arbitrator’s determination on 15 June 2011 is confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,200 plus GST.

BACKGROUND

The respondent worker, Warren Gunton, started work for the appellant employer, Albury City Council (the Council), in 1991. He initially worked as a casual gatekeeper, but became a full-time meter reader by the end of 1991. The work was repetitive and required him to read and replace meters, and get in and out of a car. Replacing a meter required a lot of bending, and forceful pushing and pulling to release the seal that held large nuts in place.
Mr Gunton first experienced back pain in the course of his employment in 1994. The Council’s records confirm that he injured his back in several specific incidents between 1994 and 2005. He resigned from the Council on 6 September 2005, effective on 16 September 2005. His evidence is that he resigned for three reasons: because he could not do the work (because of his back symptoms), he wanted to move to Queensland to be with his ex-partner, and his son had a serious motorbike accident.
Some time after leaving the Council, Mr Gunton worked part-time for Bob Crosby & Co Pty Ltd (Bob Crosby) assembling motor cycles. His evidence is that he worked there in either 2007 or 2008, but a PAYG statement from Bob Crosby states that Mr Gunton worked there from 26 October 2005 until 28 March 2006. In 2008, Mr Gunton worked part-time for two weeks as a landscape gardener for Andrew Harvey. There is evidence that he also worked for other employers after that date. The relevance of these jobs and the effect they had on Mr Gunton’s back was a contentious issue at the arbitration and on appeal, and is discussed further below.
Mr Gunton suffered from depression (not related to his claim for compensation) between 2005 and 2008, and did not seek advice about his workers compensation rights until 2008. He completed a claim form on 1 December 2008 and his solicitors formally claimed compensation on his behalf on 21 January 2010.
The Council’s insurer, StateCover Mutual Limited (StateCover), disputed liability on the grounds that:
(a)     the claim had not been duly made in accordance with the legislation;
(b)     if the injury constituted an aggravation, acceleration, exacerbation or deterioration of a disease, employment (with the Council) was not a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration or, in the alternative, the Council was not the last employer that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease;
(c)     any incapacity (which was disputed) did not arise out of or in the course of Mr Gunton’s employment with the Council;
(d)     Mr Gunton was not incapacitated;
(e)     Mr Gunton had no entitlement to lump sum compensation, and
(f) the claim was out of time under s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Mr Gunton filed an Application to Resolve a Dispute (the Application) in the Commission on 12 October 2010, in which he claimed weekly compensation from 18 September 2005 to date and continuing, lump sum compensation, and hospital and medical expenses. His injury was described as “[l]umbar spine, [t]horacic spine – disc bulges and developing derangement resulting in constant pain”, which had been caused by:
“Physically demanding position at work, involving heavy manual work, bending, lifting and working in confined spaces has, over time, caused, aggravated, exacerbated and/or accelerated debilitative, degenerative changes to lower and middle back.”
The Commission listed the matter for conciliation and arbitration on 1 February 2011 and 7 April 2011. Mr Gunton gave oral evidence and was cross-examined. In a reserved decision delivered on 15 June 2011, the Arbitrator found that:
(a) Mr Gunton suffered a serious and permanent disablement to his back as a result of his injury and had not claimed compensation within the time limit in s 261 because of his depression and other personal difficulties. The depression and personal difficulties constituted “other reasonable cause” under s 261(4) and Mr Gunton’s failure to claim within the time in s 261(1) was therefore not a bar to the recovery of compensation;
(b)     the facts were sufficient to prove a nexus between the employment and the deterioration of Mr Gunton’s physical condition. The evidence raised an inference that it was more probable than not that Mr Gunton’s employment was a contributing factor to the worsening of the disease from which he suffered (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 (Semlitch));
(c)     applying the authorities Semlitch, Commonwealth v Beattie [1981] 53 FLR 101 (Beattie), Cant v Catholic Schools Office (2000) 20 NSWCCR 88; Murray v Shillingsworth [2006] NSWCA 367 (Shillingsworth), Mr Gunton suffered injury at work with the Council and that work was a substantial contributing factor to the injury. This finding was supported by the evidence from Dr Isbister (the worker’s qualified specialist) and Dr Machart (the Council’s qualified specialist), and
(d)     the short periods of work with Bob Crosby and as a landscape gardener “were nothing more than brave attempts by [Mr Gunton] to try to perform some work” and they produced nothing more than flare-ups of Mr Gunton’s existing back condition and “could not be compared to the nature of the tough, physically demanding and damaging work performed by [Mr Gunton] for [the Council] over many years”.
After applying the steps in Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526, the Arbitrator found Mr Gunton to be partially incapacitated and entitled to an award from 18 September 2005 to date and continuing. On 15 June 2011, the Commission issued the following Certificate of Determination:
“The Commission determines:
1. The respondent will pay the applicant pursuant to s 40 of the Workers Compensation Act 1987 from and including 18 September 2005 to and including 30 June 2008 the sum of $100 per week and from and including the 1 July 2008 to date and continuing the sum of $200 per week.
2.       The respondent is to pay s 60 expenses in relation to the injury to the applicant’s back from the 17 September 2005 to date as verified by accounts, invoices or receipts.
3.       The respondent is to pay the applicant’s costs as agreed or assessed.
4.       I order that those costs be subject to an uplift of 25 per cent which uplift is available to both parties’ lawyers.”
The Council has challenged the Arbitrator’s determination on liability, but has not challenged his findings on quantum.

ISSUES IN DISPUTE ON APPEAL

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     finding that Mr Gunton’s employment with the Council was a substantial contributing factor to any back injury;
(b) finding that the Council was the employer who last employed Mr Gunton in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease under s 16(1) of the Workers Compensation Act 1987 (the 1987 Act);
(c)     finding that the periods of employment after Mr Gunton ceased work with the Council were “nothing more than brave attempts by [Mr Gunton] to try to perform some work”;
(d)     failing to provide adequate or any reasons for dismissing the subsequent employment, and
(e)     failing to give adequate consideration to the evidence in dismissing the subsequent employment.

THE EVIDENCE

Mr Gunton

Mr Gunton was born in 1970 and is now 41 years old. He gave evidence in a statement dated 1 October 2010 and at the arbitration on 1 February 2011. After starting work with the Council as a casual gatekeeper in 1991, Mr Gunton became a full-time meter reader with the Council’s water department in late 1991. He received instruction in meter reading, replacement and repair. He did that job for six or seven months of the year and worked with the water reticulation system construction and repair crew for the balance of the year. The second job was heavy and involved digging up and replacing rusted or damaged pipes.
On the retirement of a co-worker in 1994, Mr Gunton became a full-time meter reader. He spent six to seven months reading meters, two to three months investigating faults, and two to three months repairing and replacing meters. Replacing meters required large nuts, often tight because they had not been loosened for up to 25 years, to be removed. It required great force to release the seals, which were metal on metal with flared ends. He also replaced industrial sized meters that were five times the size of domestic meters.
Mr Gunton recalled returning home on a number of occasions with a sore back and lying on the floor with a heated wheat bag. He had good days and bad days. He started receiving chiropractic treatment in late 1994. In about 1995, he was working with a construction crew when a workmate accidentally struck him with a sledgehammer, causing bruising to his lower back. He completed an incident report form and had one or two weeks off work. He never considered claiming workers compensation “as no one ever did” and he was not sure if he could.
In about 1998, the Council employed contractors to read meters and Mr Gunton’s “replacement and repairs” increased. He also had a car accident in the course of his employment in 1998 and was off work for one or two weeks with “whiplash, bruising and tenderness in the neck and back”. He did not consider making a claim for compensation.
At about this time, a residential development was established at Thurgoona Park, where all meters were placed underground and were difficult to access. Replacing these meters involved removing heavy concrete lids and “accessing an area that required much bending or squeezing into small spaces” and, in the wetter part of the year, slipping in mud.
By 1999 and 2000, Mr Gunton’s middle and lower back was hurting constantly and he started seeing a chiropractor and massage therapist, at his own expense, once a fortnight to twice per week. This continued until he finished work in September 2005.
In 2000, Mr Gunton injured his right hand while using a Stillson wrench at work. The injury required surgery, which was covered by workers compensation.
In about 2002, Mr Gunton’s workload increased when the Council introduced three meter readings per year. At about this time, Mr Gunton drove a Mitsubishi utility at work that had a bench seat close to the ground. When driving it, he felt every bump and suffered continuous pain.
The heavy and repetitive nature of the work Mr Gunton did over time “created the back condition” that forced him to give up work with the Council. He lodged numerous incident reports and had short times off work when the pain became too great to tolerate. He resigned in September 2005.
He said at [19] of his statement:
“Part of my reason for resigning was to move to Queensland to be with my ex-partner. I could no longer work and the pain I was suffering increased when it was cold. I thought I could find some relief in a warmer climate. My attempt at reconciliation with my ex-partner did not succeed so I returned to Albury.”
Mr Gunton has been in receipt of a disability support pension from March 2006 to date.
Mr Gunton said that, before his back condition, he used to be an active person who rode motor cycles. Though he had come off his bike on occasions, some 15 years or more ago, he only ever suffered minor cuts and abrasions. He also used to build engines and trailers, but now could not even bend over a car, let alone pull an engine out. He can only do light tasks around the home and struggles with even the most basic tasks.
In July 2009, Mr Gunton saw Dr Gassin, orthopaedic surgeon, who recommended a pain management program.
On 12 August 2009, Mr Gunton was rushed to hospital by ambulance with severe back pain and liver problems. He was diagnosed with autoimmune arthritis caused by a codeine overdose in the kidneys and liver.
He continues to see a chiropractor and take medication for his back and for depression.
With respect to work performed after leaving the Council, Mr Gunton said at [29] and [30]:
“In 2007 I attempted to go back to work and I gained employment at Bob Crosby & Co in Wodonga. My job involved servicing and assembling farmer’s bikes. I worked at Bob Crosby & Co for approximately 2–3 months, I worked 2–3 days per week for about 6 hours per day. I had to leave this employment as I could not cope with the pain in my back.
Then in approximately June 2008 I again attempted to return to some form of work so I started helping out a friend who has his own gardening business. My duties involved using a ride-on mower, weeding and putting plants in holes that had been pre-dug by another worker. I was working approximately 3 days per week around 6 hours per day. I could only manage to do this work for 2–3 weeks but as per my employment with Bob Crosby & Co I could not cope with the pain in my back due to the constant bending over.”
He remained on a disability support pension. He did not believe he could perform his pre-injury duties.
In his oral evidence at the arbitration, Mr Gunton said that his medication included morphine patches, Naprosyn, Efexor, Temaze and Ducene. He agreed that he was “very slow” and said he had a “shocking memory”. He said that his back had been deteriorating between the time he started work with the Council and when he ceased on 17 September 2005.
In September 2005, Mr Gunton’s son was injured in a motor bike accident and was flown to Melbourne for treatment. Mr Gunton immediately left Albury to be with his son. In addition, his partner had left him to live in Queensland and Mr Gunton fell into a “major depression” for which he was hospitalised two or three times.
Mr Gunton said that he did not work between 2005 and 2008. By mid-2008, he had stabilised but his back was still going downhill. With regard to his back, every six months or three months “something would change or it would hurt a bit more or I’d get a different pain somewhere else” (T12.32). The back pain was getting worse.
He said that he got the job at Bob Crosby’s in around November 2008. His job required him to “pre-deliver motorcycles” (T15.16). He pulled the crates apart, put the handlebars and front wheels on, some oil in them, and put them in the showroom. He worked at a bench that had a hydraulic lift so he did not have to bend or do any heavy lifting. He did not suffer any injury while working at Bob Crosby’s. He said it was a “pretty easy, casual job” (T15.34) that he described as light work. According to Mr Gunton’s evidence, the job was only intended to be temporary and it finished just before Christmas. The job was not available generally and he “knew the guy personally” (T15.56). He could not do that job if it was available now because his back has “gone way past its workable condition” (T16.13).
Because he was “going a bit crazy sitting at home” (T16.25) Mr Gunton asked a friend (a landscaper, Mr Harvey) if he could give him a hand for a couple of weeks so he could get out of the house. He said that they dug holes, planted shrubs and covered them with soil and watered them. He described it as light work that was “a little bit strenuous on the back because I did get up and down” (T17.25) but he did not hurt himself.
In cross-examination, Mr Gunton was shown a PAYG statement from Bob Crosby that said he had worked there from 26 October 2005 until 28 March 2006. He denied that he worked for Bob Crosby in that period and said that he worked there in 2007. He thought there might have been a mistake, but readily agreed that, because of the cocktail of drugs he had been on, he might have been confused about the date. He agreed that he was living in Melbourne from about November 2008 until January 2010 (T30.6).
Mr Gunton was also cross-examined about the history in Dr Isbister’s report of 6 October 2009 and agreed that he had worked for several months doing motorcycle repairs and for several weeks doing landscaping jobs. He did not agree that he left those jobs because his symptoms became worse, but said, “it was just uncomfortable for me to work” (T26.14).
Mr Gunton agreed that he told a chiropractor at Cranbourne Park Chiropractor Centre in Melbourne (Karen Dixon) in November 2008 he had a problem with his back on and off for 10 years and that it had been playing up. He agreed that it depended on what he had been doing; for example, driving a car with poor suspension would cause extra pain. He also agreed he had injured his thigh and right leg six to eight weeks prior to November 2008 when it was stuck by a motorcycle foot peg when he had fallen off. He said that anything that he did where he was not comfortable or his back hurt, he always suffered later on (T34.15). He said that, in November or December 2008, he would have changed the oil in his wife’s car. Just pouring oil in would put his back out sometimes.
Mr Gunton agreed that he told Dr Machart that the work for Bob Crosby caused back pain, but it “was nothing like being in this state” (T35.28) because it had deteriorated so much in the last 12 to 18 months.
Mr Gunton said that his back had “definitely” (T37.49) gotten a lot worse between September 2005 and December 2008. Referring to his back, he added, at T37.31:
“It was going downhill as I was leaving work [with the Council]. I’d had enough. I’d had enough of bending over working in holes, for 14 years of repetitive work basically—
Q. Yes.
A. —getting in there was hard.”

Graham McDonald

Mr McDonald provided a statement on 10 June 2009. He is a meters and services technician with the Council, a position he has held for about 20 years. He first met Mr Gunton in early 1993, when Mr Gunton started work at the Council as an assistant meter reader. He described Mr Gunton as a determined, conscientious and consistent worker.
Mr Gunton regularly came to work with cuts and bruises from his involvement in motor bike racing, but Mr McDonald could not recall anything serious. He did remember Mr Gunton coming in at the end of the day, on a fairly regular basis, complaining that his back was sore and that he had “put it out again”, and that he was going to the chiropractor. Mr McDonald was not aware of when or how Mr Gunton hurt his back, but he seemed to suffer from a bad back regularly.
Some of the meters were below ground level and were very hard to work on because of the confined space. Mr McDonald felt his back become sore when he read or worked on those meters. There would not have been many workers who did not have bad backs. Mr McDonald said that “[w]e all knew that [Mr Gunton] complained of a crook back, but so did we all”. During this time, Mr Gunton continued to ride his motor bike and compete regularly in races. Mr McDonald had no doubt that Mr Gunton hurt his back when working with the Council, but he did not know what he did to suffer the first injury.

Medical evidence

The following is a summary of the key medical evidence. It does not include all of Mr Gunton’s attendances on health care professionals, which extend over many years, but I have attempted to include the more significant entries relevant to the present claim.
Mr Gunton attended at the Shepard Chiropractic Centre regularly from September 2003 until 2008 and on a few occasions in 2010.
On 15 September 2005, Mr Gunton attended at Albury Base Hospital emergency department (where he was seen by Dr Ho) complaining of right-sided neck pain after being “man-handled” by staff at corrective services while being put into a cell. One staff member had put Mr Gunton into a headlock, at which time he heard his neck crack five times. The clinical records noted “No significant PMHx → past orthopaedic Hx: ? old neck injury post MBA”. He was noted to be on Efexor. Though the presenting problem was neck pain, and the examination and investigations focused on that problem, Dr Ho also examined Mr Gunton’s back. He found no soft tissue injury to the back, but there was “mid line tenderness – Thx – Lx” (thoracic and lumbar spine) and tenderness over the left paravertebral musculature.
On 28 October 2005, Mr Gunton presented to Albury Base Hospital emergency department complaining that, since the assault on 15 September 2005, he had nausea, headache and loss of balance. He had had recent chiropractic procedures for his back and thought they may be the problem.
On 16 January 2006, Mr Gunton presented at Albury Base Hospital with a history of having lacerated his left foot on 24 December 2005. He had woken through the night with sudden pain and swelling in his foot.
On 20 January 2006, Mr Gunton was admitted to Albury Base Hospital for day surgery to repair the tendon injury to his left foot. The hospital notes recorded that Mr Gunton had previously had a right carpal tunnel release and that his past medical history included depression. He returned the next day complaining of vomiting and diarrhoea. His ex-partner said that she thought Mr Gunton needed a psychiatric assessment.
On 2 February 2006, Mr Gunton attended Albury Base Hospital emergency department requesting a psychiatric assessment. He had spoken with “AccessLine” that morning and was told to go to the hospital because he felt like “exploding”, as everything was overwhelming him. He had a history of multiple traumatic experiences in the last 12 months. The notes referred to financial stressors, a car loan, no family support and having resigned from his job to move to Queensland. His child suffered a broken jaw and “events happened after that – 3/12 of stressors”. He felt suicidal. His past medical history included depression for 16 months, a laceration to his foot with flexor tendon repair and carpal tunnel release. Significantly, the notes recorded that he was unemployed. It seems that Mr Gunton was admitted for two days.
The notes for 2 February 2006 under “history and presenting problem” record that Mr Gunton had a history of depression and had been on Efexor 75 mg for 18 months until recently, when it was increased to 150 mg. Mr Gunton said that he had deteriorated mentally since September 2004, when his son had a motorbike accident and he thought he had died. One week after this, police assaulted Mr Gunton in cells, when he thought he was going to die. Since then, his sleep had deteriorated, he had recurring nightmares, was more isolative, and hypervigilant. This history suggests that the reference to the son’s accident being in September 2004 was an error and it is more likely, though it is far from certain, that the correct date is September 2005.
In the “progress chart” for 2 February 2006, the following is recorded:
“Identifies that recent unfortunate events recently (son in accident, death of friend, loss of work Albury Council for 14 yrs) have been difficult to cope [with], and he also has financial difficulties.”
The “progress chart” for 3 February 2006 recorded that the previous three months had been traumatic. His son almost died in a motorbike accident. The notes also recorded Mr Gunton’s relationship breakdowns, being assaulted by the police and that he had been the subject of three apprehended violence orders. With regard to his work, it was noted that he had worked at Albury City Council for 14 years and “resigned to go to Mackay – coal mining”.
He was admitted again on 13 March 2006 for further surgery on his left foot.
On 14 August 2006, Mr Gunton attended at Albury Base Hospital emergency department. The previous day he fell off a dirt bike travelling at 80–90 kph. He said the main damage was done when he fell out of the shower on the morning of 14 August. He came into hospital on crutches, as he was unable to stand or sit for long due to severe lower back pain. Friends lifted him into a taxi so he could come to the hospital.
Dr Jude Mendis, from the Albury Base Hospital, wrote to Dr Ling on 15 August 2006 stating that Mr Gunton had presented to the hospital’s emergency department at 22:28 the previous evening with back pain and left chest pain after a fall. The diagnosis was back sprain/strain. Lumbar spine x-rays dated 15 August 2006 were described by Dr Mendis as “unremarkable”. The x-ray report from the radiologist (Dr Mullins) recorded “minor narrowing of the L2/3 disc space height with some early spondylosis”.
Mr Gunton returned to Albury Base Hospital on 16 August 2006, saying that he had been taking Panadeine Forte and had stomach pains. He was getting “spasm type pain in his lower back and legs” and was using crutches as he said he was unable to walk without them.
On 16 October 2006, Mr Gunton saw Dr Kruytbosch, general practitioner at the David Street Medical Clinic in Albury. The doctor recorded that Mr Gunton had been assaulted by police 12 months ago and had subacromial bursitis in his left shoulder and depression.
Dr Kruytbosch saw Mr Gunton on 10 January 2007 and recorded a history of “L ulnar nerve palsy and L shoulder problems and R hand problems with carpo-metacarpal joint”. The reason for the visit was described as “Post-Traumatic Stress Disorder”. Diagnostic imaging was requested for the right hand and left shoulder.
Dr Kruytbosch saw Mr Gunton on 19 January 2007 for “osteoarthritis fingers”, insomnia and post-traumatic stress disorder.
On 27 February 2007, Mr Gunton attended at Albury Base Hospital for a psychiatric consultation because he had been feeling down. The notes recorded a past history of post-traumatic stress disorder following witnessing his son have a serious accident two years ago and later being assaulted. I assume that the reference to the assault is a reference to Mr Gunton having been assaulted. Mr Gunton reported having received a head injury in the assault and having difficulty concentrating, doing tasks he used to be good at, playing games, and memory.
Notes from AccessLine dated 27 February 2007 record that Mr Gunton experienced two traumatic events in a week in September 2006. He witnessed a serious motorbike accident involving his 14-year-old son and he (Mr Gunton) was assaulted by a correctional officer and hospitalised overnight with a shoulder injury. He had also been assaulted in jail in December 2006.
Mr Gunton was admitted to Nolan House at Albury Base Hospital between 27 February 2007 and 13 March 2007. Progress notes for 28 February 2007 state that his son’s motorbike accident was in September 2004 and that Mr Gunton was assaulted by a prison warden four days later. Since these events, two years ago, Mr Gunton suffered disturbed sleep and symptoms of depression. He had not worked in the last two years. The notes for 7 March 2007 refer to Mr Gunton complaining of “back pain +++” and wanting to see a chiropractor. He again complained of a painful back on 8 March 2007 and was given oral analgesia.
Mr Gunton was again admitted to Nolan House between 14 March 2007 and 22 March 2007 because of worsening depression.
On 2 January 2008, Mr Gunton came under the care of Dr Ogilvie at the Casey Medical Centre in Melbourne. On that day, Dr Ogilvie recorded “anxiety and depression” and that Mr Gunton had been working “[m]anual labour – sheet metal work” and may be moving to Melbourne.
On 10 January 2008, Mr Gunton attended Albury Base Hospital for treatment of a 4 cm cut to his left calf received while helping a friend move a metal plate.
On 8 March 2008, Mr Gunton was admitted to Albury Base Hospital after being involved in a motorbike accident when a foot peg went through his right thigh, which required surgical repair under a general anaesthetic.
On a date that I have been unable to identify, Dr Kuzeff, general practitioner at the Albury Central Medical Clinic, became Mr Gunton’s treating general practitioner. Under “Past Medical History”, Dr Kuzeff’s notes record:
“1 August 2003            URTI
17 August 2004           PR Bleeding
26 August 2004           Depression – reactive
3 September 2004        GORD (Gastro-oesophageal reflux disease)
13 January 2006          PTSD (Post-Traumatic Stress Disorder)
3 July 2008                  Retrolisthesis L2/3
3 July 2008                  Spondylosis – Lumbosacral
23 September 2008      Spondylosis – Lumbosacral”

Dr Kuzeff’s detailed notes for Mr Gunton do not start until 18 June 2008. On that day, the following is recorded:
“Long term back pain. Started while doing casual work 2 days per week about 3 weeks ago with gardener – weeding and pushing wheel barrow. Only lasted 2 weeks. Original back injury happened when he was working at council – repetitive job for 12 years changing water meters.”
Dr Kuzeff diagnosed lumbosacral spondylosis and arranged for x-rays. Mr Gunton returned on 16 July 2008 wanting to know about myofascial injections. He complained of a flare-up of pain on 21 July 2008 and said he would like injections. Dr Kuzeff injected the worker’s left thoracic muscles and lumbar region bilaterally with lignocaine on 23 July 2008. Mr Gunton reported on 29 July 2008 that the injection had not helped.
On 8 August 2008, Dr Ogilvie referred Mr Gunton to Dr Gassin, pain management specialist. The referral letter said that Mr Gunton had suffered a flare-up (of his low back pain) “while doing some landscaping work”. He had three days when he had trouble getting out of bed. Another patient had suggested (presumably to Mr Gunton) that he get an MRI scan, but Dr Ogilvie could not find “much wrong with the back today except some crepitus and general stiffness”. This referral is consistent with Dr Ogilvie’s clinical notes for 8 August 2008, which record:
“For medication
Started doing some landscaping.
Lasted about 2–3 weeks.
All of a sudden, developed some LBP.
X-rays done in Albury.
Apparently has OA.
Settled down again now.
For a time, couldn’t get out of bed for 3 days.
OE
Normal flexion, extension, rotation.
Some mild crepitus only.”
On 9 September 2008, Mr Gunton attended at Albury Base Hospital with flu-like symptoms.
On 11 September 2008, Dr Kuzeff recorded that Mr Gunton had complained of pain ever since he left the Council about two-and-a-half years ago. He wanted to make a workers compensation claim.
On 23 September 2008, Dr Kuzeff recorded:
“Worked for Albury City Council for 12 years reading and replacing water meters. Would be in and out of car about 100 times daily and the rest of the time was replacing water meters. Involved lots of pushing. Old bolts were difficult to undo. Frequently attended chiropractors. Now attends Sheppard [sic] Chiropractic. Back pain started about 1998 and has slowly deteriorated since then.
PTSD – 1996 [sic] son nearly killed in motor bike accident which Warren witnessed. A week later Warren was bashed by a police officer. Letter Created – re NSW – Workers Compensation – AEM.”
On 22 October 2008, Dr Ogilvie saw Mr Gunton and recorded “depression”, that Mr Gunton had been “doing work at Casey M/cycles”, and that he wanted to find a chiropractor. The notes added “LBP – bending over”.
On 11 November 2008, Dr Ogilvie saw Mr Gunton again and recorded:
“Mid t-spine back pain.
Assessed by x-ray at Albury – not seen here for same.
X-ray done.
Has flare up after working in bike store – feels can’t work there any more.
Sore in back after work, with Kristene having to give deep massage, at which time feels better.
Sore if bends/crouches etc.
Asked for w/cover certificate back-dated to 2005 (September), when he was working as a meter-reader at Albury City Council.
Repeadedly getting into/out of car and at times difficult meter-reads.
Was told by lawyer to come in and get a cert. For this time.
Apparently got one in Albury.
Explained I can’t back-date cert’s for 3 years, with lengthy gap and no ongoing w/cover certs written by anybody in meantime.
Seemed to u/stand and wants to get in touch with solicitor.”
On 13 November 2008, Mr Gunton attended on Karen Dixon, chiropractor. Her notes record that he had had low thoracic pain on and off for 10 years with “this episode” having occurred a couple of weeks ago. Six to eight weeks earlier, a foot peg from a motor cycle pierced his right thigh. There was also a reference to “MCAccidents – no major injury”. Ms Dixon’s notes referred to “working on cars” in December 2008 and in January 2009. Her last entry is dated January 2010.
On 5 March 2009, Dr Kuzeff responded to a letter from StateCover dated 27 February 2009. Essentially, he confirmed the history and diagnosis recorded in his notes on 18 June 2008. He added that Mr Gunton was unfit for work and that he was unsure about the timetable for recovery.
On 18 March 2009, Dr Ogilvie saw Mr Gunton and recorded:
“Flare up of back pain.
‘started in council – changing water meters’
Had X-rays. Dr in Albury
Hasn’t had CT
L) sided sciatica
OE
Tender over mid back in region of bottom of T-spine, top of lumbar spine.
Bent forward.
Tender.”

Dr Ogilvie discussed Mr Gunton’s back pain on 25 March 2009 and suggested physiotherapy. On 3 April 2009, Dr Ogilvie recorded that “Physio caused some pain the other day!” Mr Gunton was considering Pilates.
Dr Brighton-Knight, orthopaedic surgeon, saw Mr Gunton on 20 April 2009 at the request of Dr Ogilvie. In his report of that date, Dr Brighton-Knight said that Mr Gunton had been placed on a disability pension because of his severe disabling pain that had “not been treatable”. On top of that, Mr Gunton had either endogenous or reactive depression that had a significant effect on his health.
Dr Brighton-Knight noted that Mr Gunton had early osteoarthritis in his hands, despite being only 38 years old. He also had quite advanced osteoarthritis on CT scan of his spine, particularly at L5/S1, but also at the thoracic spine. He also had advanced intervertebral disc degeneration at multiple levels. The changes were not consistent with a typical 38-year-old man. The reason for it was not clearly understood, but it was felt to be probably primarily genetic and associated with some environmental factors. It was possible that Mr Gunton had a low-grade inflammatory arthritic condition. Dr Brighton-Knight did not arrange to see the worker again.
Dr Ogilvie recorded on 27 April 2009 that Mr Gunton was pursuing a claim “through Albury City Council” and wanted the doctor to “put him on W’cover”. The doctor explained that he could not really do that as Mr Gunton had finished work there four years ago.
Dr Ogilvie recorded on 15 May 2009 that Mr Gunton’s back was playing up and he wrote a referral for him to see Dr Gassin, pain management specialist. The referral letter said that Mr Gunton had diffuse degenerative disc bulges in his lumbar spine below L1 and “intermittent exacerbations of his pain”.
On 19 May 2009, Dr Ogilvie discussed a reduction in analgesia and noted “minimal codeine”.
On 22 May 2009, Dr Zhao, a general practitioner at the Casey Medical Centre, recorded “BACK PAIN FLARE UP DUE TO STOP [sic] HIS REGULAR PAIN RELIEF”. The doctor prescribed Norspan patches.
Dr Gassin saw Mr Gunton on 2 July 2009. He took a history of Mr Gunton having had low back pain for several years “which started in the setting of his work which involved reading and replacing water meters”. Mr Gunton reported that his job was physically demanding, requiring him to get in and out of cars dozens of times each day, and involved bending and lifting. Mr Gunton had not worked for the past four or five years, but his pain had increased significantly despite attending a chiropractor on a regular basis. The chiropractor gave him good relief for two or three days at the most. Mr Gunton had been on strong painkillers, but oral analgesics had recently been stopped due to abnormal liver function. Mr Gunton’s main pain was in his low thoracic spine. When severe, it radiated to his neck and gave him headaches. He also suffered from pain in his low back, but that was less severe. His pain interfered with most activities, especially those including lifting.
On examination, Dr Gassin found the worker to have a limited range of thoracolumbar movement in all planes, with tenderness centrally and over the paravertebral muscles from T8 to L1. The right paravertebral muscles in the same region were “prominent” and there was tenderness to palpation of the low back. A recent MRI scan revealed multi-level disc and facet joint disease in the lumbar region. Dr Gassin agreed with Dr Brighton-Knight that Mr Gunton would benefit from participation in a pain management program. Alternatively, he could see a local physiotherapist for a supervised back-strengthening program. Dr Gassin encouraged Mr Gunton to remain as active as possible. He increased his dose of Norspan to 20 mg weekly.
On 28 July 2009, Dr Ogilvie referred Mr Gunton to Marie Feletar. The referral letter said that Mr Gunton had chronic back pain from multi-level disc disease.
Mr Gunton was admitted to Frankston Hospital in Melbourne on 13 August 2009 because of reactive arthritis secondary to gastroenteritis and discharged on 24 August 2009. The discharge summary records that Mr Gunton presented with “acute on chronic back pain” and developed swollen ankles. The discharge summary included a past history of depression and back injury. Under “social history”, it was recorded that Mr Gunton was on a disability pension, used to work as a water meter reader and gave up work in 2005.
Dr Thevathasan, consultant physician in rheumatology, saw Mr Gunton on 31 August 2009. He recorded that Mr Gunton had a long history of low back pain “claimed on work because he had a fairly heavy job with Albury City Council”. Mr Gunton had been on a disability support pension for the last four years, mainly because of his back.
Dr Isbister, orthopaedic surgeon, saw Mr Gunton for medicolegal purposes on 6 October 2009. In his report of the same date, he took a history of Mr Gunton having worked with the Council for 14 years as a meter reader. The worker described the changing of water meters as a strenuous and often difficult task. Later in his career, he checked meters up to 100 times a day. That required him to enter and alight from his vehicle for each inspection.
After working as a meter reader for three years, his back began to become “sore” and he sought chiropractic treatment on each occasion. X-rays dated 30 June 2008 showed degenerative changes at L2/3 and narrowing of the intervertebral discs at L3/4 and L4/5. At that time, treatment with myofascial injections did not give significant relief. Aggravation of his symptoms occurred when he was riding in his vehicle and getting in and out of it up to 100 times per day. Mr Gunton finished with the Council in September 2005.
Since then, Mr Gunton took a part-time job for several months when he was carrying out motor cycle repairs. He also did landscaping jobs for several weeks. He had to leave, as his symptoms became worse. Mr Gunton was not working when he saw Dr Isbister and had been in receipt of a disability support pension for four years, largely due to his back condition and associated depression.
Mr Gunton complained of constant pain, which spread to his hips and up his back. The pain was mainly on the left side and he had at least one episode of “sciatic” pain down his leg that lasted three or four hours. He complained of spasms in his paravertebral muscles. His treatment included massage, chiropractic treatment and various medications, including morphine patches.

An MRI scan dated 25 May 2009 showed desiccation of the L2/3 disc and bulging at L2/3, L3/4 and L4/5 levels. There was also facet joint arthropathy and potential impingement on the L5 nerve root. Dr Isbister diagnosed lumbar spondylosis affecting all disc levels in Mr Gunton’s lumbar spine, with bulges at the L2 to L5 discs and facet joint degenerative changes at L5/S1.
Dr Isbister concluded that the condition of Mr Gunton’s lumbar spine was “consistent with the nature and conditions of his work as a Water Meter Reader over at least 14 years”. That work had caused and contributed to the degenerative changes in his lumbar spine. Mr Gunton was unfit for work requiring him to bend, lift or twist. That would exclude him from carrying out motor cycle repairs, landscape gardening and work as a meter reader.
Dr Machart, orthopaedic surgeon, saw Mr Gunton at the request of the Council’s solicitors on 22 March 2010 and reported on 24 March 2010. He took a history that Mr Gunton had suffered several injuries, but was not too sure about dates. Dr Machart used the chronology in the solicitor’s letter and added items reported by Mr Gunton. Excluding matters not relevant to the current claim, Dr Machart recorded that, on 6 December 2001, Mr Gunton reported an increase in the severity of his back symptoms when his work vehicle was changed from a Commodore ute, which had good lumbar support, to a Mitsubishi, which had a bench seat and no lumbar support. Mr Gunton thought his back was already on the way out.
On 31 January 2003, Mr Gunton was electrocuted at work. The “shock” caused pain in the middle of his back and increased the pain in his lower back. The pain became worse and “stayed worse”. Mr Gunton was off work for one week (then returned to his normal duties) and was subsequently treated by a chiropractor. In around 1994, Mr Gunton developed pain in the middle of his back and lower back, which he felt was a result of changing water meters. The pain continued and was aggravated by the injuries listed above. Mr Gunton stopped work on 17 September 2005, allegedly because the work was too repetitive.
Dr Machart recorded that, six months after leaving the Council, Mr Gunton was put on a disability pension. While on the pension, he did motor bike engine repairs for Bob Crosby for two or three days per week for two or three months. He left that job “because the severity of the pain became worse, ‘shocking pain’, while bending through the working day”. He also did landscape gardening for two weeks two years ago.
On examination, Dr Machart noted spasms from the lower thoracic spine to the lumbar spine. There was asymmetry. There was tenderness over the lumbosacral junction and over the lower thoracic segments. Under “Diagnosis”, Dr Machart concluded:
“(1) Multilevel degenerative changes, in the lower thoracic and in the lumbar spine.
(2)   Several injuries that are outlined causing aggravations of the degenerative changes.
(3)   Ongoing symptoms relate to the spine only.
(4)   The injuries during the time that StateCover Mutual Limited was at risk, since 01/04/2002, caused some degree of material aggravation in the context of chronic back ailment and several other injuries, pre-01/04/2002 and after he ceased work on 17/09/2005, while working as a mechanic.”
Dr Machart added, in answer to specific questions put to him by the Council’s solicitors, that Mr Gunton’s employment with the Council from 1 April 2002 to 17 September 2005 was a substantial contributing factor to his current disability. He referred to Mr Gunton having suffered “two injuries listed”. Though it was difficult to assign specific structural damage to those two injuries, an increase in the severity of symptoms was reported as a result of them and those symptoms did not return to “pre-injury status in terms of the severity of the symptoms”. There was therefore some ongoing impact from those two injuries, which was “symptomatically evident”. Mr Gunton was not fit for his pre-injury duties. Dr Machart considered the cause of Mr Gunton’s incapacity to be:
“(a)   Generalised degenerative condition in the lumbar spine – degenerative changes and Scheuermann’s disease.
(b)     The nature and conditions while employed by the Albury City Council over several years.
(c)     The injuries, which are specified.”
Dr Machart apportioned responsibility (presumably for Mr Gunton’s incapacity) as follows:
(a)     20 per cent to StateCover’s period of risk;
(b)     7.5 per cent to the injury on 31 March 2003 [sic, 31 January 2003];
(c)     7.5 per cent to the injury on 13 May 2003;
(d)     50 per cent to the general nature and conditions of employment before 1 April 2002, and
(e)     15 per cent to the work at Bob Crosby’s while employed as a motor mechanic, which increased the severity of the back pain after he retired (from the Council) in 2005.
In answer to the question of whether Mr Gunton’s employment after 1 April 2002 had been a substantial contributing factor to any exacerbation, aggravation or acceleration of any disease condition, Dr Machart said that “[e]mployment after 01/04/2002 was a substantial contributing factor, in the form of aggravation and acceleration of the disease”.
Dr Machart prepared a supplementary report on 27 June 2010, in which he said that Mr Gunton’s employment after 17 September 2005 was a substantial contributing factor to the acceleration, aggravation or deterioration of the disease condition. He added that, in the context of the several injuries, “there was no doubt that physically demanding work should be considered as a substantial contributing factor to acceleration, aggravation and deterioration of the disease condition”, and employment after 17 September 2005 fell into that category.
On 1 August 2010, Mr Gunton attended at Albury Base Hospital emergency department because of back pain. The presenting problem was recorded in the nursing assessment as:
“Back problem for last 3 years. Pain ↑ over last 4/5 days. Forgot to put his naprosyn patch on yesterday after a shave. Has had several valium today for back spasm.”
It was also recorded that Mr Gunton had chronic back pain with an exacerbation over the last three days. He had a severe migraine with his back pain. The notes added that Mr Gunton had “pain in mid thoracic” that had “started at rest” and that Mr Gunton was a “poor historian” and “inconsistent”.

Documentary evidence

Mr Gunton completed a claim form in September 1999 for a lower back injury that occurred while he was changing a water meter. He said that he pushed and pulled and twisted at the same time and put his lower back out. His claim was accepted, but it is not known how much time he had off work because of this injury.
In September 2000, Mr Gunton had surgery for (work-related) right carpal tunnel syndrome. He initially returned to work on suitable duties and then to his normal duties.
On 7 December 2001, Mr Gunton completed a claim form because of a constant backache caused by the lack of lumbar support in his work car. His back “consistently ached” driving on bumpy dirt roads. It is not known how much time, if any, Mr Gunton took off work.
On 6 February 2003, Mr Gunton completed an entry in the Council’s injuries and incidents book stating that he had been electrocuted on 31 January 2003. He burnt his fingers and had pain in his middle back.
On 16 May 2003, Mr Gunton completed an entry in the Council’s injuries and incidents book stating that he hurt his lower and middle back on 13 May 2003, when he twisted while pushing and pulling with two Stillsons changing very tight meter flanges. He had two days off work and saw the chiropractor.
Mr Gunton completed an optional resignation form with the Council on 6 September 2005. The resignation was to take effect on 16 September 2005. Though the form has a space headed “Reason for leaving (optional)”, Mr Gunton left that space blank.
Mr Gunton completed a claim form on 1 December 2008, in which he described how he was injured as follows: “Continual & repetitive reading and replacing of water meters”. He gave a date of injury as 17 September 2005. He said he had not returned to work with a new employer.
Mr Gunton obtained a WorkCover medical certificate from Dr Kuzeff on 23 September 2008. The diagnosis was “low back strain, lumbosacral spondylosis”, which occurred “reading and replacing water meters”. Dr Kuzeff ticked “yes” to the question of whether employment was a substantial contributing factor to the injury.

ARBITRATOR’S REASONS

After reviewing the evidence, submissions and authorities, the Arbitrator said (at [51]) that the evidence was that the deemed date of injury was 17 September 2005. He concluded (at [59]) that the facts were sufficient to prove a nexus between the employment (with the Council) and the deterioration in Mr Gunton’s physical condition. After referring to further authorities, he said (at [62] and [63]):
“Having considered those authorities and the evidence I find that the applicant suffered injury at work with the respondent and that work was a substantial contributing factor to the injuries which he suffered. This finding is supported both by the evidence of Drs Isbister and Machart. The respondent however relying as it had to on the first report of Dr Machart argued that the respondent was not the last employer as envisaged by s 16(1)(b) who last employed the applicant in employment that was a substantial contributing factor to the deleterious process within the applicant’s back. The short periods of work the applicant pursued with the motor cycle dealership and the shorter period with the landscape gardener were nothing more than brave attempts by the applicant to try to perform some work. These brief periods produced nothing more than flare-ups of the applicant’s existing back condition and could not be compared to the nature of the tough, physically demanding and damaging work performed by the applicant for the respondent over many years.
Next having made a finding of injury with a deemed date of injury of the 17 September 2005 I now need to determine whether and to what extent the applicant is entitled to weekly compensation from the date claimed of the 18 September 2005 to date and continuing (see Part 5.2 of the Application). There being no claim for total incapacity pursuant to s 36 or partial incapacity deemed total pursuant to s 38 of the 1987 Act.”
He then considered the quantum of the award, which has not been challenged on appeal.

SUBMISSIONS

The Council

Mr Stockley accepted that Mr Gunton had complained of back pain while working with the Council, but argued that he never presented as unable to do the work. September 2005 was a turbulent time for Mr Gunton and there were good reasons why he left the Council other than an inability to do his work because of his back. Mr Gunton’s resignation form, which he signed on 6 September 2005, gave no reason for leaving. The contemporaneous medical records do not refer to Mr Gunton being unable to work at the Council until the first WorkCover certificate on 23 September 2008. There is no medical opinion that Mr Gunton was unable to work for the Council in September 2005 because of an aggravation of the degenerative changes in his back. If there was an incapacity in 2008, it was because of a further aggravation injury with employers after September 2005.
Based on this history, the Arbitrator erred in concluding that 17 September 2005 was the deemed date of injury. That is so because there is no evidence that, as at 17 September 2005, Mr Gunton was incapacitated because of any aggravation injury with the Council. Further, the Arbitrator failed to explain the reasoning process that led him to conclude that 17 September 2005 was the deemed date of injury.
In finding that the injury was an aggravation of a disease, the Arbitrator had to identify the disease, the body part affected, and the date of injury by reference to the time of the incapacity said to have resulted from the injury. His failure to do so was an error. The treating doctors gave a number of diagnoses. Dr Isbister diagnosed lumbar spondylosis, but made no reference to the thoracic spine. Mr Gunton had complained of thoracic symptoms for years. No medical evidence supports Mr Gunton’s claim of incapacity because of his back from 17 September 2005.
Mr Gunton had to get some support of a medical nature that, as at 17 September 2005, he had an incapacity as a result of his injury. The Arbitrator erred in overlooking that.
Mr Stockley challenged the Arbitrator’s conclusion that Mr Gunton’s work with the motor cycle dealership (Bob Crosby) and the landscape gardener (Mr Harvey) was “nothing more than brave attempts by [him] to try to perform some work” that produced nothing more than “flare-ups” of his existing back condition that could not be compared to the nature of the tough, physically demanding and damaging work performed by him for the Council over many years. The Arbitrator should have considered s 16 and found that, based on the evidence, the last relevant employer was someone other than the Council.
The Arbitrator’s reasoning at [62] and [63] was deficient and his conclusions as to injury and the post-2005 employment were wrong. The determination should be set aside and an award entered for the Council.

Mr Gunton

Counsel for Mr Gunton, Mr Judd, submitted that the Arbitrator’s reasons at [62] could not be read in isolation. The Arbitrator carefully reviewed the evidence and submissions and his reasons were adequate.
With regard to the post-injury employment, Mr Gunton’s evidence was that it was light and he was not challenged on that. It was open to the Council to have obtained further medical evidence about the effect of that employment, but it did not do so. It is therefore not open to conclude that the post-injury work was work that aggravated or accelerated the disease process. The Council has not demonstrated that the conditions in s 16(1)(b) have been satisfied.
Mr Gunton did not work with Bob Crosby as a motor mechanic, but as an assembler, and his evidence on that was not challenged. That was very different to the history Dr Machart recorded. It was therefore open to the Arbitrator to find that the short periods with Bob Crosby and Mr Harvey were nothing more than flare-ups of Mr Gunton’s existing back condition. It was reasonable that Mr Gunton would have some symptoms while doing that work.
Mr Gunton did heavy work with the Council from 1993 until September 2005. Dr Machart had a detailed history of Mr Gunton’s work with the Council and had the MRI scan, which shows degenerative changes in both the thoracic and lumbar spine. In his opinion, the work with the Council was a substantial contributing factor to the aggravation of the degenerative changes in the worker’s back. Having looked at the whole of the evidence, the Arbitrator found an aggravation injury under s 4(b)(ii) of the 1987 Act. That finding was open to him.
Mr Gunton’s increase in symptoms (presumably in 2008 and later) was the result of the degenerative condition and there is no evidence that establishes an aggravation injury with either Bob Crosby or Mr Harvey. The work with Bob Crosby was light work for two or three days per week and cannot be said to have had a tangible effect on Mr Gunton.
Mr Gunton stopped work with the Council for three reasons; his partner had moved to Queensland, his son had had a serious accident, and he could no longer work. With regard to the lack of contemporaneous medical evidence to support a claim of incapacity in September 2005, Mr Judd said that I could not rely on the histories recorded in the notes from Albury Base Hospital, because Mr Gunton was on medication for his depression and, at that time, was unreliable.
Mr Gunton had a degenerative back in 2005 and suffered an aggravation of that degenerative condition with the Council. This is evidenced by him having sought chiropractic treatment on numerous occasions in 2005. His back problems continued until he resigned. The nature of the injury is that it would progress. He suffered no further aggravation with any post-2005 employer.

DISCUSSION AND FINDINGS

I do not accept that the Arbitrator gave adequate reasons for his conclusions. In Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186, Ipp JA (Mason P and Tobias JA agreeing) held, at [28]:
“28 It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: ‘I believe Mr X but not Mr Y and judgment follows accordingly’.”
Essentially, that is what the Arbitrator did. After reciting the evidence, the submissions and the authorities in detail, he stated (at [51] and [63]) that the evidence was that the deemed date of injury was 17 September 2005 and (at [59]) that the nexus between the injury and the work with the Council was established. The alleged deemed date of injury was 17 September 2005. The Council disputed that allegation. The Arbitrator did not say why he found that the deemed date of injury was 17 September 2005 (though the inference is that he accepted Mr Gunton’s evidence that, because of his injury, he was unable to do his work from that date) or why he rejected the Council’s case.
On the issue of the last relevant employer, the Arbitrator did give a reason for accepting Mr Gunton’s case, namely, that the work with Bob Crosby and Mr Harvey “produced nothing more than flare-ups” of Mr Gunton’s existing back condition. That reason is challenged as being inadequate and contrary to the evidence.
Given the Arbitrator’s error in failing to give adequate reasons on the deemed date of injury, it is necessary that the matter be re-determined. Both parties have consented to me conducting that re-determination. That requires me to re-determine the issue of the last relevant employer. They also agreed that, if the worker is successful in the re-determination, the quantum of any award in his favour is to be the quantum found by the Arbitrator.
The first point to note is that, notwithstanding that Mr Gunton had a number of specific incidents with the Council that might have been characterised as “personal injuries” under s 4(a), he has pleaded and argued his case (both before the Arbitrator and on appeal) as an aggravation, acceleration, exacerbation or deterioration of a disease under s 4(b)(ii) of the 1987 Act caused by his duties as a meter reader and that is the way I have approached the case.
Though the Council’s s 74 notice has not disputed whether Mr Gunton suffered an injury, I will deal with that issue because the nature of the injury is relevant to the overall approach to the claim. It has disputed that employment with it was a substantial contributing factor to the injury. Mr Stockley conceded a nexus between Mr Gunton’s duties and the symptoms he experienced in his thoracic and lumbar spine while working for the Council, but disputed a connection between the symptoms in 2005 and the incapacity in 2008.
Mr Gunton’s evidence that his duties were repetitive and placed a strain on his back and caused him pain is corroborated by Mr McDonald and by Mr Gunton’s regular attendances for chiropractic treatment since 2003. The Council has called no evidence disputing the nature of Mr Gunton’s duties or his complaints of back pain, and I accept his evidence on both matters.
The evidence from Dr Machart, which I accept, on the injury and substantial contributing factor issues, and which is consistent with Dr Isbister’s evidence, supports the conclusion that Mr Gunton’s employment with the Council caused an aggravation of the degenerative changes in his thoracic and lumbar spine, and that his employment was a substantial contributing factor to the aggravation. It is not disputed that degenerative changes in the spine are a disease.

On the question of whether employment was a substantial contributing factor to the injury, Mr Gunton only has to establish that his employment was a substantial contributing factor to the aggravation of the symptoms of the disease in his spine, not to the disease process overall (Shillingsworth).
Given Mr Gunton’s age and general circumstances, the nature of his duties, and the lack of any persuasive evidence that he would have suffered an aggravation of the degenerative changes in his spine at about the same time or at the same stage of his life if he had not worked for the Council, and the medical evidence from Dr Machart and Dr Isbister, I am satisfied that employment with the Council up to 16 September 2005 was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the degenerative condition in Mr Gunton’s thoracic and lumbar spine. That is, he suffered an injury under s 4(b)(ii) of the 1987 Act to which his employment with the Council was a substantial contributing factor. I will refer to this injury as the aggravation injury.
That being so, it is necessary to apply s 16 to determine the deemed date of injury. That date is either the date of incapacity or, if incapacity has not resulted from the injury, the date on which Mr Gunton claimed compensation (s 16(1)(a)). 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 of the disease. The Council disputes that any incapacity resulted from the aggravation injury with it and says that, applying s 16, it is not the last relevant employer who employed Mr Gunton in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of Mr Gunton’s s 4(b)(ii) injury.
The question arises whether Mr Gunton suffered an incapacity as a result of the aggravation injury with the Council. The evidence on this issue is far from ideal, but neither party sought to have the matter remitted for a second arbitration to call additional evidence.
The Council places great weight on the following factors:
(a)     the absence of a reason for resigning in the resignation form;
(b)     the Albury Base Hospital notes for September and October 2005, which made no reference to a back injury;
(c)     the absence of any contemporaneous medical evidence in September 2005, and
(d)     Mr Gunton’s subsequent work history.
Mr Gunton’s case rests on his assertion that he stopped work in September 2005 because of a combination of personal reasons and because, as a result of his back symptoms, he could no longer do the work of a meter reader. The Council says that I should not accept Mr Gunton’s assertion that his back was a factor in forcing him to stop work and that there is no contemporaneous medical evidence of an incapacity in September 2005 related to the aggravation injury.
On balance, I accept that Mr Gunton’s back symptoms, which resulted from his aggravation injury, were one of the reasons for him ceasing work with the Council in September 2005. Regardless of why Mr Gunton resigned, I accept that back symptoms caused by his aggravation injury with the Council incapacitated him on the open labour market and he is entitled to compensation accordingly. My reasons are as follows.
The absence of a reason for resigning in the resignation form is of limited relevance. The provision of a reason for resigning is expressly stated to be “optional”. Of more significance is the fact that Mr Gunton continued to seek regular chiropractic treatment for his back both before and after he resigned. This provides independent corroboration of Mr Gunton’s complaint that he still had back symptoms that were causing him sufficient trouble that he sought and obtained treatment. Once he resigned, his capacity to earn had to be assessed on the open labour market. That he continued with his normal work until his resignation does not mean that he was not incapacitated on the open labour market (Steggles v Aguirre (1988) 12 NSWLR 693).
It is true that the Albury Base Hospital notes for September 2005 relate mainly to Mr Gunton’s neck symptoms as a result of the altercation with police. However, in addition to recording Mr Gunton’s complaints about his neck, Dr Ho also examined Mr Gunton’s back and recorded tenderness in the thoracic and lumbar spine. That finding is consistent with Mr Gunton’s evidence that he had continuing symptoms in his back at that time. The note that Mr Gunton complained of back pain without any precipitating cause (recorded as “back pain +++” in the notes) when he was in Nolan House in March 2007 for his psychological symptoms (see [62] above) also confirms Mr Gunton’s evidence that his symptoms continued after he left the Council.
It is clear that Mr Gunton had several major stressors in his life at the time he resigned. It is logical and reasonable that those stressors were the main focus of his attention in the period from September 2005 until 2008 and I do not believe his failure to seek more extensive medical treatment (other than that offered by his chiropractor) in that period prevents a finding that he suffered an incapacity on the open labour market when he ceased work in September 2005. I accept Mr Gunton’s evidence that his back symptoms and the difficulty he had in performing his duties contributed to his decision to resign from the Council, and that those symptoms restricted him working in the open labour market.
Mr Stockley drew attention to the entry in the Albury Base Hospital notes for 3 February 2006, which refer to Mr Gunton having resigned to go to Mackay (to work in) coalmining. That entry is of limited, if any, probative value in determining the issues in this case. It is not known if Mr Gunton ever went to Mackay or worked as a coalminer. Neither proposition was put to him in cross-examination. At its highest, it may have been an expression of Mr Gunton’s hope at that time, but it does not indicate that he was not incapacitated.
In light of Mr Gunton’s unchallenged evidence of the nature of his duties (repetitive bending and straining over many years), his regular attendances on his chiropractor both before and after he ceased work with the Council, and his consistent complaints of pain in his back over the years (corroborated by Mr McDonald and the notes from his chiropractor and Nolan House), Dr Isbister’s opinion that the work with the Council caused and contributed to the degenerative changes in Mr Gunton’s lumbar spine and that he was unfit for work requiring him to bend, lift or twist is compelling. Notwithstanding the time gap between Mr Gunton ceasing work and the date of Dr Isbister’s report, I believe that, when read with the other evidence to which I have referred, it supports a finding that, because of his aggravation injury with the Council, Mr Gunton had an incapacity on the open labour market when he ceased work in September 2005. This conclusion is also supported by Dr Machart’s evidence.
The other medical histories in the case also support a connection between Mr Gunton’s symptoms and his aggravation injury with the Council. In particular, the histories recorded by Drs Kuzeff, Gassin and Thevathasan are all consistent with Mr Gunton’s evidence of a long history of back pain because of his heavy work over many years with the Council.
In any event, in determining a worker’s capacity to earn in the open labour market, there is a need to consider more than just the medical evidence (Campbell JA in Guthrie v Spence [2009] NSWCA 369 (Spence) at [196]–[197] (Basten JA and Handley AJA agreeing), citing Ric Developments Pty Ltd (t/as Lane Cove Poolmart) v Muir [2008] NSWCA 155; 71 NSWLR 593 at 598 at [22]). Mr Gunton’s evidence, which, for the reasons I have already stated, I accept, provides ample support for a finding of incapacity, as a result of the aggravation injury, from 17 September 2005.
The extent of that incapacity is a different matter. As the parties have agreed to accept the Arbitrator’s findings on quantum, I do not have to re-determine that part of the claim. However, I note that, having regard to Mr Gunton’s other problems, the Arbitrator only awarded compensation of $100 per week for the period from September 2005 until 30 June 2008. Thus, he took the view that the worker’s incapacity as a result of his aggravation injury was modest, but not nil.
For these reasons, deemed date of injury for Mr Gunton’s aggravation injury is the time of his incapacity, that is 17 September 2005, the day after he stopped work for the Council.
I do not accept Mr Stockley’s submission that the Council is not the employer who last employed Mr Gunton in employment that was a substantial contributing factor to the aggravation injury. First, the Council relied on the employment with Bob Crosby. There are a number of problems with this employment. Precisely when it occurred is the subject of conflicting evidence, though this is probably not critical. The PAYG statement suggests that Mr Gunton worked for Bob Crosby between 26 October 2005 and 28 March 2006. Mr Gunton’s evidence is that he worked there in either 2007 or 2008.
While I am inclined to accept the dates in the PAYG statement, those dates are inconsistent with the contemporaneous notes from Albury Base Hospital which suggest that, in January 2006 and March 2006, Mr Gunton had surgery on his left foot because of a serious laceration to a tendon in his left foot received on 24 December 2005. The hospital notes make no mention of Mr Gunton needing a certificate to be away from work because of his foot injury and this suggests that he was not working at that time. This is consistent with the note on 2 February 2006 that Mr Gunton was unemployed (see [47] above). However, it is possible that Mr Gunton regarded the Bob Crosby work as so casual that he still considered himself to be effectively unemployed.
Accepting that Mr Gunton did work for Bob Crosby between 26 October 2005 and 28 March 2006, his evidence is that it was a “pretty easy, casual job” (T15.34) where he worked at a bench and had a hydraulic lift table that moved the motorcycles up and down so he did not have to bend or do any heavy lifting. He said that the job was not heavy and only involved pulling a crate apart, putting the handlebars and front wheel on, putting oil in and putting the bike in the showroom. Mr Gunton only got the job because he “knew the guy personally” (T15.56). While I accept that Mr Gunton conceded that he has a “shocking memory” (T8.44) and that this undermines the reliability of his evidence on dates and similar matters, his evidence about his duties at Bob Crosby was very detailed and unchallenged.
Mr Gunton’s evidence that he only worked for Bob Crosby’s for two or three days per week is consistent with the PAYG statement, which records his gross income for the whole period to be $3,360. His evidence about the light nature of his duties at Bob Crosby is plausible and, at the least, not inconsistent with the contemporary evidence in the Albury Base Hospital notes, which make no note of any specific complaint about work in early 2006. I therefore accept Mr Gunton’s evidence about his duties at Bob Crosby and find that the work was only light work that was not a substantial contributing factor to the aggravation of the degenerative changes in Mr Gunton’s back.
It follows that I do not accept Dr Machart’s opinion about the nature and effect of the work at Bob Crosby. Dr Machart based his opinion on a history that Mr Gunton’s duties required him to carry out motorcycle engine repairs and that it caused him “shocking pain”. That history is contrary to Mr Gunton’s unchallenged evidence on oath and I prefer and accept Mr Gunton’s oral evidence because it is plausible and partly supported by an absence of complaints to Albury Base Hospital in early 2006.
I have not overlooked Mr Gunton’s evidence in his statement that he had to leave Bob Crosby because he could not cope with the pain (see [26] above). However, his oral evidence on this issue was far more comprehensive and was not challenged in cross-examination. His oral evidence added (at T35.27) that he had pain while working for Bob Crosby, but it was pain he could handle. This evidence is consistent with a continuation of the symptoms he had with the Council rather than a fresh aggravation injury. For these reasons, and the reasons stated above, on this issue I prefer Mr Gunton’s oral evidence where it conflicts with his statement.
If I am wrong in finding that Mr Gunton did not suffer an aggravation injury with Bob Crosby, there is a further reason why the Council’s argument regarding Bob Crosby must fail. However, as the parties have made no submissions on this matter, I do not base my decision on it. The evidence is that Mr Gunton worked for Bob Crosby in Wodonga, Victoria (see Mr Gunton’s evidence quoted at [26] above). Like s 17 of the 1987 Act, s 16 does not have extra-territorial operation. As a result, compensation is payable by “the employer who last employed the worker [in New South Wales] in employment that was a substantial contributing factor to the aggravation” (A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41). Therefore, even if the work with Bob Crosby was a substantial contributing factor to an aggravation injury, it occurred in Victoria and is of no consequence to a claim in New South Wales.
Next, the Council relied on Mr Gunton’s work with Mr Harvey and the evidence from Dr Kuzeff and Dr Ogilvie of the effect that work had on him. While I accept that the work with Mr Harvey caused an increase in Mr Gunton’s symptoms, Dr Ogilvie’s notes record on 8 August 2008 that by that date the pain had “settled down again now” (see [68] above). Therefore, the increase in symptoms was only transient.
Further, there is no medical evidence that the work with Mr Harvey was a substantial contributing factor to an aggravation injury. Dr Machart had a history of the work with Mr Harvey (which he described as landscape gardening) but made no reference to Mr Gunton suffering any kind of aggravation injury as a result of it. That was consistent with Mr Gunton’s evidence that he merely gave a mate a hand for a few weeks because he was going crazy sitting at home (T16.23–30) and that it was light work, involving him working on his knees and “putting little shrubs in”, covering them with soil and watering them (T17.16). This is confirmed by Mr Harvey’s letter of 13 December 2010, in which he said that he was fully aware of Mr Gunton’s back condition and that is why he gave him “light duties only” and (presumably) only paid him $60 per week.
The observations of Evatt and Sheppard JJ in Commonwealth of Australia v Beattie (1981) 35 ALR 369 at 378 are applicable in the present matter:
“It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation.”
Each case must depend on its own facts. The symptoms Mr Gunton experienced while doing light part-time work with Mr Harvey were more compatible with a revelation of an existing problem in his back than the genesis of any greater problem (Middleton v Bergin Transport Pty Ltd, Burke CCJ, unreported, Compensation Court of NSW, 19 June 2001). At its highest, there was a temporary increase in Mr Gunton’s symptoms with Mr Harvey. Given the light work he performed, the very short period over which he performed it, the transient nature of the increase in his symptoms, and the absence of medical evidence addressing the consequences of the work, I do not accept that the employment with Mr Harvey was employment that was a substantial contributing factor to an aggravation injury.
The evidence suggests that Mr Gunton may also have worked for other employers while he lived in Melbourne. There is no persuasive medical evidence that he suffered an aggravation injury in the course of that employment. In any event, as that employment was outside New South Wales, it is not relevant to the current claim.
The Council also placed great weight on the notes from Ms Dixon, which referred to Mr Gunton “working on cars” on several different occasions. In cross-examination, Mr Gunton said that he might have done “an oil change on his wife’s car or something” (T34.13). This evidence is of no consequence to the claim and does not advance the Council’s case nor undermine Mr Gunton’s case. If anything, it corroborates Mr Gunton’s evidence that he has had significant back symptoms since he worked at the Council and that his symptoms flare up depending on his activities or for no particular reason (see, for example, Dr Ogilvie’s notes at [76] above).

CONCLUSION

For the reasons stated above, I find that:
(a) as a result of heavy and repetitive duties with the Council from 1991 until 16 September 2005, Mr Gunton suffered an injury to his thoracic and lumbar spine in the nature of an aggravation of a disease under s 4(b)(ii) of the 1987 Act, to which his employment with the Council was a substantial contributing factor;
(b)     as a result of that aggravation injury, Mr Gunton has been partially incapacitated for work since 17 September 2005 to date and continuing;
(c)     the deemed date of injury under s 16(1)(a)(i) of the 1987 Act is 17 September 2005, and
(d)     the Council is the last employer who employed Mr Gunton in employment that was a substantial contributing factor to his aggravation injury.
As the parties have not challenged the Arbitrator’s findings on quantum, it follows that, for the reasons in this decision, the Arbitrator’s determination is confirmed.

DECISION

For the reasons given in this decision, the Arbitrator’s determination on 15 June 2011 is confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,200 plus GST.

Bill Roche

Deputy President
30 November 2011

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

ASSOCIATE

[2011] NSWWCCPD 68

30 November 2011

Key Legal Topics

Areas of Law

Workers Compensation Law

Legal Concepts

Failure to give reasons

Aggravation of Disease

Substantial Contributing Factor

Costs