Atkins v City of Canada Bay Council
[2015] NSWWCCPD 33
•3 June 2015
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Atkins v City of Canada Bay Council [2015] NSWWCCPD 33 | ||
| APPELLANT: | Barry Leslie Atkins | ||
| RESPONDENT: | City of Canada Bay Council | ||
| INSURER: | StateCover Mutual Ltd | ||
| FILE NUMBER: | A1-1255/14 | ||
| ARBITRATOR: | Ms L Ashford | ||
| DATE OF ARBITRATOR’S DECISION: | 19 February 2015 | ||
| DATE OF APPEAL HEARING: | 27 May 2015 | ||
| DATE OF APPEAL DECISION: | 3 June 2015 | ||
| SUBJECT MATTER OF DECISION: | Failure to consider lay evidence alleged to corroborate alleged injury; assessment of medical evidence; failure to comply with Practice Direction No 6 | ||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||
| HEARING: | Oral | ||
| REPRESENTATION: | Appellant: | Mr C Tanner, instructed by Carroll & O’Dea Lawyers | |
| Respondent: | Mr G Barter, instructed by David Allen Legal | ||
| ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 19 February 2015 is revoked and the matter is remitted to a different Arbitrator for re-determination. | ||
INTRODUCTION
This matter involves a claim for hospital and medical expenses under s 60 of the Workers Compensation Act 1987 (the 1987 Act) for proposed surgery to the worker’s cervical spine/neck. The appeal involves a challenge to the Arbitrator’s finding that the worker did not suffer an injury to his neck on 2 December 2010 or as a result of heavy work performed with the employer over several years up to that date. For the reasons explained below, the appeal is successful and the matter is remitted to another Arbitrator for re-determination.
FACTUAL AND PROCEDURAL BACKGROUND
The appellant worker, Barry Atkins, started work for the respondent council in January 2005 as a concreter. It is accepted that, as the Arbitrator found, Mr Atkins’ duties included “hard manual labour” ([11]) in the construction and maintenance of pavements, kerbs and guttering, minor landscaping and asphalting. It is also accepted that, in the course of his duties, Mr Atkins used compactors, vibrators, jackhammers, rollers and grinding machines, as well as shovels and crowbars.
Mr Atkins alleged that he injured his neck and right upper extremity (right shoulder) as a result of using a 10–12 kg crowbar and hammer to dig holes in a footpath on 2 December 2010. In addition, or in the alternative, he alleged that he suffered the same injuries as a result of his employment duties with the respondent “over an extended period of time”, which duties required him to perform “repetitive and physically demanding tasks including but not limited to concreting and placing strain upon his neck and right shoulder”. The period relied on was the period “up to 2 December 2010” (T7.15).
Mr Atkins’ case, as presented at the arbitration, was that he injured his neck and right shoulder on 2 December 2010. He asserted that his case was corroborated by two co-workers, Domenico Ranieri and Fernando Horcada, who worked with Mr Atkins on that day and who both gave evidence that Mr Atkins complained to them on 2 December 2010 that his arm and neck were sore. Mr Horcada also gave evidence that Mr Atkins complained “at least once every day” thereafter that his neck and arm was sore.
Notwithstanding that submission, on causation, Mr Atkins’ counsel relied on evidence from the treating neurosurgeon, Dr Kam, to the effect that Mr Atkins’ ongoing neck symptoms were related to the heavy physical work he had been involved in as a concreter, which work substantially contributed to his ongoing (neck) pain and discomfort. He also relied on evidence from Dr Vote, orthopaedic surgeon qualified by the respondent, to the effect that his employment was a substantial contributing factor to his ongoing symptoms and that it was “understandable” that any repetitive work or manual work with Mr Atkins’ left upper limb would “to some extent precipitate some discomfort in relation to his neck and left shoulder”.
The respondent conceded that Mr Atkins injured his right shoulder on 2 December 2010, but disputed that he injured his neck on that day or as a result of the physical nature of his employment up to that day. If he did injure his neck, the respondent asserted that the surgery proposed by Dr Kam was not reasonably necessary as a result of the injury. The respondent also raised other issues that do not call for determination on appeal.
The respondent essentially relied on the fact that Mr Atkins made no complaint of pain in his neck when he completed the Incident/Hazard Reporting Form on 2 December 2010. Nor did he complain of neck symptoms in his statement of 8 July 2012. The respondent contended that the first mention of neck symptoms was to Dr Maniam, a specialist who treated Mr Atkins’ right shoulder symptoms in 2011, but that was not until about August 2012. It argued that Mr Atkins’ history of when he developed neck symptoms was not reliable when compared to the documents and histories provided prior to August 2012, which made no mention of any neck symptoms.
At the arbitration on 5 November 2014, the Arbitrator heard lengthy oral submissions but neither side sought leave to call any oral evidence or to cross-examine. In a written decision delivered on 19 February 2015, the Arbitrator concluded that she was not satisfied that Mr Atkins’ claim (with respect to the alleged neck injury) could succeed in respect of the “injury” provisions and she made an award for the respondent.
In summary, the Arbitrator came to the view that Mr Atkins had had an intermittent problem of neck pain from time to time over many years prior to 2010, for which he had sought treatment from his general practitioner, Dr Tun. It did not appear that those attendances were related to any particular work injury. Rather, the Arbitrator said that they appeared to be a normal incidence of wear and tear leading to degenerative changes in Mr Atkins’ cervical spine.
The Arbitrator added that the preponderance of medical opinion was to the effect that the degenerative changes in Mr Atkins’ cervical spine were “longstanding” ([53]). While it may well have been that there was a spontaneous flare up of symptoms in mid-2012, at the time of the referral to Dr Maniam, such problems had clearly occurred in the past, as noted in Dr Tun’s notes in 2002 and 2005.
The Arbitrator acknowledged that the proposed surgery was a recognised treatment for Mr Atkins’ degenerative condition. However, she concluded (at [54]) that the degenerative condition (in Mr Atkins’ cervical spine) was more likely than not a constitutional problem, rather than as a result of injury in the employ of the respondent, noting the prior self-limiting problems, the lack of any reporting of the neck symptoms for some considerable time, and the weight of the medical opinion, which did not relate Mr Atkins’ neck problems to his employment or injury on 2 December 2010.
The Commission issued a Certificate of Determination on 19 February 2015 in the following terms:
“The Commission determines:
1.Award for the respondent in respect of any injury to the cervical spine in the course of employment on 2 December 2010 and in respect of the nature and conditions of the applicant’s employment with the respondent.
2.The applicant’s employment with the respondent was not a substantial contributing factor to any injury to the cervical spine.
3.Any proposed surgery to the cervical spine is not ‘reasonably necessary treatment’ as a result of any injury in the employ of the respondent.”
Mr Atkins has appealed the Arbitrator’s findings on injury.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(1) overlooking, or failing to give weight to, evidence from Mr Atkins and from two co-workers (Fernando Horcada and Domenico Ranieri) to the effect that he had made contemporaneous complaints of neck pain (contemporaneous complaints);
(2) failing to accept the unchallenged evidence of Mr Atkins, Mr Horcada and Mr Ranieri that Mr Atkins made contemporaneous complaints of pain in the neck (contemporaneous complaints);
(3) overlooked, or failed to give weight to the expert evidence of Dr Maniam, Dr Bentivoglio and Dr Vote (expert medical opinion);
(4) failing to find that the preponderance of expert opinion indicated that Mr Atkins’ condition was work related, thus establishing injury pursuant to s 4 of the 1987 Act (expert medical opinion);
(5) failing to provide adequate reasons that might explain whether she accepted or rejected the evidence of Mr Horcada and Mr Ranieri, and the basis for any such acceptance or rejection (contemporaneous complaints);
(6) failing to provide adequate reasons that might explain whether she rejected the opinions of Dr Maniam, Dr Bentivoglio and Dr Vote, and the basis for any such rejection (expert medical opinion);
(7) stating that the preponderance of medical opinion was to the effect that Mr Atkins has longstanding degenerative changes, without considering the residual question of whether Mr Atkins’ undoubted heavy work contributed to that condition (expert medical opinion), and
(8) failing to find that Mr Atkins suffered a compensable injury to his neck and was entitled to be compensated under s 60.
While the appeal document identified the grounds of appeal relied on by Mr Atkins, rather than making written submissions in support of each ground, as required by Practice Direction No 6, Mr Atkins’ counsel, Mr Craig Tanner, merely made general submissions as to why the Arbitrator had erred. That did not comply with the Practice Direction and was unsatisfactory and unacceptable. It has substantially delayed the resolution of the appeal.
In addition, Mr Atkins’ amended chronology, filed on 31 March 2015, which was amended at the direction of the Commission, because the original chronology did not comply with Practice Direction No 6, was still incomplete in that it did not list the principal events leading up to the filing of the Application to Resolve a Dispute. That was also unacceptable.
The legal profession is reminded, yet again, that appeals must comply fully with Practice Direction No 6. That includes, among other things, succinctly stating the grounds of appeal, providing submissions in support of each ground, and providing a detailed chronology of the principal events leading up to the filing of the Application to Resolve a Dispute and, if necessary, after that date.
Though Mr Tanner identified eight grounds of appeal, it is convenient to deal with those grounds under two headings: contemporaneous complaints and expert medical opinion.
GROUNDS 1, 2 and 5 – CONTEMPORANEOUS COMPLAINTS
Submissions
Mr Tanner submitted that the Arbitrator’s statement that Mr Atkins “made no complaint of neck problems for some considerable period” ([51]) failed to address Mr Atkins’ evidence and the evidence from his co-workers, Mr Horcada and Mr Ranieri. Though the Arbitrator referred to the evidence from Mr Horcada and Mr Ranieri, which Mr Tanner said was unchallenged, she failed to mention it again, or consider its relevance to the issue of whether Mr Atkins injured his neck in the course of his employment.
Relying on Mr Atkins’ statement that he “complained about symptoms in [his] right arm and to a lesser extent [his] neck”, which evidence was, so it was submitted, corroborated by Mr Horcada and Mr Ranieri, Mr Tanner argued that this evidence was not noted or evaluated by the Arbitrator. Mr Tanner said that Mr Atkins’ statement that he believed “the symptoms in [his] neck have been present since 2 December 2010” was also not noted or evaluated by the Arbitrator.
Nor did the Arbitrator note or discuss the history taken by Dr Vote that, in his report of 27 November 2012, Mr Atkins had “a history of neck discomfort extending over at least the last two years”, a history consistent with the onset (of neck symptoms) in December 2010, and with the evidence from Mr Horcada and Mr Ranieri.
Mr Tanner contended that the Arbitrator’s statement that Mr Atkins made no complaint of neck problems is relevant solely to his communication with treating doctors and overlooked the evidence from Mr Horcada and Mr Ranieri. He pointed out that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner (Nominal Defendant v Clancy [2007] NSWCA 349 at [54]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; King v Collins [2007] NSWCA 122 at [34]–[36]).
The absence of reference to the neck at the time that Mr Atkins was receiving treatment for his shoulder should be seen, Mr Tanner argued, in the context of his principal complaint, the Arbitrator noting (at [52]) that Mr Atkins’ “explanation that the right shoulder problems overshadowed any neck complaint may well have some credence”.
Mr Tanner submitted that if the Arbitrator had not overlooked the evidence of Mr Atkins and his co-workers she would have accepted that evidence, which was unchallenged and probative of the issue of injury. He said that the timing of Mr Atkins’ complaints to Mr Horcada and Mr Ranieri supports his claim of having injured his neck performing heavy manual work and that evidence should have been considered, evaluated and accorded weight. The Arbitrator did not state if she accepted or rejected that evidence and failed to give adequate reasons for her finding that Mr Atkins did not injure his neck.
Counsel for the respondent, Mr Barter, submitted that there was no need for the Arbitrator to say that she rejected the evidence from Mr Horcada and Mr Ranieri, because that is an inference from her conclusion and that conclusion is supported by her reference to the absence of complaint of neck symptoms from 2010 until August 2012 and her reference to Dr Tun’s notes.
With respect to the Arbitrator’s alleged failure to give reasons, Mr Barter argued that, to establish an error due to a failure to give adequate reasons, it is necessary for Mr Atkins to demonstrate not only that the reasons are inadequate but that the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application (M & S Shipman Pty Ltd v Matters [2003] NSWWCCPD 19 at [84]). Moreover, the inadequacy must be such as to warrant the inference that the Tribunal has not exercised its jurisdiction in accordance with law (Absolon v NSW TAFE [1999] NSWCA 311 at [67]).
Mr Barter further submitted that an Arbitrator is only obliged to give a brief statement of reasons (s 294(2) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)) and that the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his or her final conclusion of fact (Mahoney JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271C).
Discussion and findings
I accept that an Arbitrator does not have to make express findings in respect of every fact leading to his or her conclusion. I also accept that, when considering a challenge to the adequacy of reasons, it must be remembered that the decision must be read as a whole and that “reasons need not be lengthy or elaborate” (Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443).
Moreover, the extent and scope of a trial judge’s (or Arbitrator’s) duty to give reasons depends upon the circumstances of the individual case (Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA (with whom Clarke JA and Hope AJA agreed)). The obligation to give reasons is related to and dependent upon the submissions presented to the particular judicial officer.
In the present case, Mr Tanner submitted to the Arbitrator (at T21.28), as he has on appeal, that Mr Horcada and Mr Ranieri supported Mr Atkins’ evidence that he had injured his neck on 2 December 2010 and that the Arbitrator would accept their evidence (T24.21), which, he contended, was unchallenged. He also submitted (at T23.32) that Mr Atkins had provided a history to Dr Bentivoglio that he had no prior neck pain, that is, no neck pain prior to 2 December 2010. (Given that this history was demonstrably false, and that Mr Tanner, if he had read Dr Tun’s notes, would have known it to be false, Mr Tanner’s submission was more than a little surprising.)
In these circumstances, the Arbitrator had an obligation to deal with the evidence from Mr Horcada and Mr Ranieri and determine if she accepted it or rejected it and, if she rejected it, why. It may well be, as Mr Barter has submitted, that it can be inferred that the Arbitrator did not accept the evidence from Mr Horcada and Mr Ranieri. However, the question remains, where injury (to the neck) was disputed, and where the complaint of pain to the neck at work on 2 December 2010 (and subsequently so far as Mr Horcada’s evidence is concerned) was alleged to be corroborated, what weight did the Arbitrator give to evidence from the co-workers. Mr Barter suggests that the answer is clear from a reading of the whole decision. I do not accept that to be so.
The Arbitrator summarised the evidence from Mr Horcada and Mr Ranieri at [17], where she said:
“17.Statements from co-workers Fernando Horcada and Domenico Ranieri are in evidence. Each of these gentlemen attests to the hard work performed by [Mr Atkins] on 2 December 2010 using crowbars and jackhammers, and of [Mr Atkins] complaining at the end of the day of pain in his shoulder and neck. Mr Horcada went further by saying he worked constantly with [Mr Atkins] after that day and that he continued to complain at least once every day that his neck and arm were sore. Mr Horcada himself went off work in September 2012.”
This was a fair summary of the evidence from Mr Horcada and Mr Ranieri.
The Arbitrator then, from [18]–[49], summarised the medical evidence, which is dealt with in more detail below. That summary included the evidence from Dr Tun’s clinical notes, which was that Mr Atkins had a cervical CT scan in August 2005 because of a painful, stiff neck, which had been present for many years, had had acupuncture for neck problems in the past (that is, before December 2010) with a good result, and a record of neck pain in September and November 2002. None of these entries suggested that Mr Atkins’ neck symptoms had been caused by his work with the respondent. Based on this evidence, the Arbitrator said that it was clear that Mr Atkins had extensive degenerative changes in his cervical spine for many years. That statement was consistent with the evidence and has not been challenged.
The Arbitrator then said, at [50]:
“Thus I have come to the view that [Mr Atkins] has had an intermittent problem of neck pain from time to time over many years, for which he has received treatment. It does not appear such prior attendances [on Dr Tun] were related to any particular work injury but appear to be a normal incidence of wear and tear leading to degenerative changes which are present, and have been present for some time.”
At [51], the Arbitrator said it was clear that Mr Atkins injured his right shoulder in the course of his employment on 2 December 2010, but she was not satisfied, on the balance of probabilities, that he injured his cervical spine at that time, noting “he made no complaint of neck problems for some considerable period”. This statement was consistent with an absence of any complaint of neck problems to any medical practitioner or physiotherapist from December 2010 until the complaint to Dr Maniam in August 2012. However, it did not deal with the evidence from Mr Horcada and Mr Ranieri.
The Arbitrator then noted (at [52]) Mr Atkins’ explanation that the right shoulder problems “overshadowed” any neck complaint. While she felt that that explanation “may well” have had “some credence”, it is clear from her decision as a whole that she did not accept it. This follows from her statement, in the same paragraph, that Mr Atkins continued to work for a period (after 2 December 2010) “albeit on lighter duties” and the fact that Dr Tun did not refer Mr Atkins for any specialist opinion until about July 2011 and then only as a result of worsening shoulder symptoms over two months. She added there was no mention of any neck symptoms at that time. This statement was correct, as far as it dealt with the evidence from Dr Tun and Dr Maniam. Again, however, it did not consider the evidence from Mr Horcada and Mr Ranieri.
The Arbitrator said (at [53]) that the preponderance of medical opinion was to the effect that the degenerative changes in Mr Atkins’ neck were “longstanding” and it may well be that there was a spontaneous flare up of symptoms in mid-2012 at the time Mr Atkins was referred to Dr Maniam, but such problems had occurred in the past, as noted in Dr Tun’s notes in 2002 and 2005.
There are two points to note about the Arbitrator’s statements at [53]. First, the reference to Mr Atkins being referred to Dr Maniam in mid-2012 was an error. For the current claim, Mr Atkins was referred to Dr Maniam in mid-2011, though he first saw him in August 2010 for a separate, unrelated work injury. It may be that the Arbitrator was referring to the referral to Dr Kam, who Mr Atkins saw in November 2012. Neither party has suggested that this error is of any relevance.
Second, while it may be accepted that the medical evidence was to the effect that Mr Atkins’ degenerative changes were longstanding, his medical case was that either the incident on 2 December 2010, or his manual work with the respondent, caused an injury to his neck (T34.9). The exact nature of that injury was not clearly articulated. The significance of that evidence is discussed below.
Next, the Arbitrator said, at [54]:
“The medical opinion of the proposed surgery is apparently that it is a recognised treatment for the applicant’s degenerative condition. However, it seems to me that the degenerative condition is more likely than not a constitutional problem rather than as a result of injury in the employ of the respondent, noting the prior self limiting problems, the lack of any reporting of the neck symptoms for some considerable time, and the weight of medical opinion which does not relate [Mr Atkins’] neck problem to his employment or injury on 2/12/2010.”
The Arbitrator concluded (at [55]) that she was not satisfied that Mr Atkins’ claim could succeed in respect of the “injury” provisions and any proposed surgery to the cervical spine was not compensable as a result of any injury on 2 December 2010 or to the “nature and conditions of his employment”.
Though the Arbitrator referred to the evidence from Mr Horcada and Mr Ranieri at [17], when summarising the evidence, she did not refer to it again. If her statements that Mr Atkins made “no complaint of neck problems for some considerable period” ([51]) and that there was a “lack of any reporting of neck symptoms for some considerable time” ([54]) are restricted to Mr Atkins’ complaints to medical experts, they were correct. The first reference to Mr Atkins complaining of his neck to a medical expert after December 2010 is when he saw Dr Maniam in August 2012.
However, Mr Tanner had addressed at length about the evidence from Mr Horcada and Mr Ranieri. That evidence, if accepted, provides some support for Mr Atkins’ assertion that the neck symptoms developed on 2 December 2010 and continued thereafter. Other than summarising the evidence from Mr Horcada and Mr Ranieri, the Arbitrator did not say if she accepted it or rejected it. The only conclusion available, given that the evidence was not overlooked, is that the Arbitrator did not accept it. However, if that was so, given that it was important evidence, she was obliged to explain why she did not accept it. In the circumstances of this case, given the issues involved and the submissions made at the arbitration, that was a failure to properly determine the dispute according to law.
I should record one further matter before leaving this issue. Mr Tanner’s submission that the evidence from Mr Horcada and Mr Ranieri was unchallenged was not correct. This, presumably, was a reference to the fact that neither witness had been cross-examined. As the Commission has attempted to explain in dozens of cases, lack of cross-examination does not mean that the relevant evidence is uncontested or unchallenged. Moreover, a court or tribunal is not obliged to accept evidence which is not the subject of cross-examination if it is contradicted by a credible body of substantial evidence (Ali v Nationwide News Pty Ltd [2008] NSWCA 183 [110]–[112]; M & E M Hull Pty Ltd v Thompson [2001] NSWCA 359 [21]; Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840, 848–849; and Gaunt v Hooft [2009] WASC 36 [41]–[42]).
The evidence from Mr Horcada and Mr Ranieri about Mr Atkins’ complaints of neck pain is not consistent with a substantial body of objective evidence. That evidence is in Mr Atkins’ own Incident/Hazard Reporting Form, which he completed on the day of the incident, Mr Atkins’ statement of 8 July 2012, clinical notes from Dr Tun, various specialists’ reports, and reports from a physiotherapist, none of which refer to Mr Atkins’ suffering any neck symptoms before August 2012. Therefore, a credible body of substantial evidence contradicts the evidence from Mr Horcada and Mr Ranieri. It is “challenged”. Mr Tanner’s submission to the contrary was wrong and should not be repeated.
Further, as I pointed out to Mr Tanner at the oral hearing of the appeal, the corroborative value of the evidence from Mr Horcada and Mr Ranieri is limited. That is because their assertion that Mr Atkins complained to them about his neck on 2 December 2010 is not consistent with Mr Atkins’ statement of 8 August 2014, parts of which Mr Tanner quoted out of context in a way that was misleading. These matters will no doubt be explored at the next arbitration.
GROUNDS 3, 4, 6 and 7 – EXPERT MEDICAL OPINION
Submissions
Mr Tanner submitted that the Arbitrator did not refer to that part of Dr Vote’s report of 27 November 2012, where he noted the causal relationship between Mr Atkins’ manual work and his neck and shoulder symptoms. While the Arbitrator said (at [53]) that the “preponderance of medical opinion is to the effect that these [the neck symptoms] are longstanding degenerative changes”, this statement failed to address the question of whether those changes were aggravated by Mr Atkins’ heavy work.
Mr Tanner argued that the preponderance of medical opinion is that Mr Atkins’ neck condition is work-related and the Arbitrator erred in stating the contrary. In addition, the Arbitrator failed to give adequate reasons for not accepting the opinions of Dr Kam, Dr Bentivoglio and Dr Vote, all of whom supported Mr Atkins’ case. He contended that she either overlooked or gave too little weight to their evidence.
Mr Barter did not deal with this issue separately, but relied on his general submissions noted above. In particular, Mr Barter drew attention to the Arbitrator’s comments at [54], quoted at [41] above. He said that, after summarising the medical evidence, the Arbitrator:
(a) said the degenerative condition in Mr Atkins’ neck was more likely than not a constitutional problem rather than as a result of injury in the employ of the respondent;
(b) noted the prior self-limiting problems, and
(c) noted the weight of medical opinion, which did not relate Mr Atkins’ neck problem to his employment or injury on 2 December 2010.
Mr Barter contended that these statements, read with the decision as a whole, make it perfectly clear how the Arbitrator came to her decision and that the decision was open to her and involved no error.
Discussion and findings
The Arbitrator’s statement that the weight of the medical opinion did not relate Mr Atkins’ neck problem to his employment or the injury on 2 December 2010 was incorrect.
With respect to Mr Atkins’ neck condition, the relevant medical evidence was to the following effect:
(a) Dr Maniam diagnosed the problems stemming from the incident on 2 December 2010 to be an aggravation of pre-existent degenerative disease at the C3/4, C5/6 and C6/7 levels associated with corresponding nerve root impingement, impingement in the right shoulder, and aggravation of pre-existent symptoms in the left shoulder. Dr Maniam said that “attributability [sic] is reasonable” and that Mr Atkins’ maximum symptoms appeared to arise from the injuries sustained in the manner described (Dr Maniam took no history of Mr Atkins injuring his neck as a result of his duties);
(b) Dr Vote stated that “[t]he problem would seem to be the nature and conditions of his work[,] which to some extent[,] in concert with the gym programme he refers to[,] have caused some aggravation of underlying degenerative change, particularly in his neck and also to some extent with his left shoulder” and that “overall, [Mr Atkins’] employment is a substantial contributing factor to his ongoing symptoms”;
(c) Dr Kam diagnosed Mr Atkins to have spondylotic disease of the cervical spine with pain from the C3/4 and C5/6 level confirmed on the cervical discogram. In Dr Kam’s opinion, the cause of Mr Atkins’ ongoing symptoms (in his neck) was “related to the heavy physical work” he had been involved in as a concreter, which he felt had substantially contributed to the ongoing pain and discomfort that Mr Atkins was suffering;
(d) Dr Bentivoglio, orthopaedic surgeon qualified by Mr Atkins’ solicitors, said that the degenerative disc disease at the C5/6 level would have been present prior to the incident, but became symptomatic and made worse by that incident. He felt that “a considerable proportion of Mr Atkins’s degenerative changes present in his neck would have developed as a result of his employment with” the respondent. He added that Mr Atkins also “developed disc damage at multiple levels of his cervical spine, as a result of the specific incident at work in December 2010”;
(e) Dr Casikar, neurosurgeon qualified by the respondent’s insurer, diagnosed Mr Atkins to have constitutional degenerative disease of the cervical spine. In the absence of clinically verifiable neurological evidence, and the absence of structural changes in the MRI consistent with an acute disc injury, Dr Casikar did not believe that the incident on 2 December 2010 aggravated a pre-existing degenerative disease of the cervical spine, and
(f) Dr Davies, an Approved Medical Specialist, issued a non-binding Medical Assessment Certificate in which he said that he did not believe the incident on 2 December 2010 caused Mr Atkins’ neck pain, which developed some time later and related to underlying degenerative changes in the neck.
The only other qualified doctor to give evidence was Dr Ian Smith, injury management consultant, who saw Mr Atkins at the request of the insurer on 6 February 2012. At that stage, the only claim on foot was for the right shoulder. Dr Smith did not give an opinion about the condition of Mr Atkins’ neck and took no history of Mr Atkins experiencing any neck symptoms on 2 December 2010, or after that date. He did say, however, that examination of Mr Atkins’ cervical spine was normal. For present purposes, Dr Smith’s evidence can be put to one side.
The following comments can be made about the remaining medical evidence. Dr Casikar and Dr Davies only considered if Mr Atkins injured his neck on 2 December 2010 and did not consider if he may have suffered an injury due to his heavy duties with the respondent. Therefore, while it is true that they both said that Mr Atkins has degenerative changes in his neck, which were not caused by the events on 2 December 2010, they did not address the additional or alternative part of the claim.
This leaves the evidence from Drs Maniam, Vote, Kam and Bentivoglio, all of whom related Mr Atkins’ neck problem to his employment with the respondent, either because of the incident on 2 December 2010 (Dr Maniam) or because of the heavy physical work he did with the respondent (Drs Kam, Vote and Bentivoglio), or because of a combination of the incident on 2 December 2010 and the heavy duties (Dr Bentivoglio).
This evidence was far from ideal. That is because, apart from Dr Vote, who referred to the heavy work having caused an aggravation of underlying degenerative changes, the doctors did not express themselves in the terms of the legislation. However, if accepted, the “weight of the medical opinion” does relate Mr Atkins’ neck problem to his employment, in one way or another, and the Arbitrator erred in stating the contrary. The Arbitrator’s conclusion on this point was a critical part of her reasoning and clearly played a role in the outcome. As a result, the matter must be re-determined.
OTHER MATTERS
The following matters require comment:
(a) Drs Bentivoglio and Vote are both orthopaedic surgeons and Mr Atkins’ reliance on reports from both doctors was in breach of cl 49 of the Workers Compensation Regulation 2010, which restricts parties to only one forensic medical report, except in the circumstances set out in cl 49(3) and (4)(c). Therefore, as the matter must be re-determined anew, Mr Atkins must elect which of those reports he wishes to tender;
(b) I assume that Mr Atkins seeks to rely on the disease provisions, though that is far from clear from the pleadings, which do not identify the relevant period of employment relied on and do not allege an injury in the terms of the legislation. Merely alleging an injury due to the “nature and conditions of employment” does not necessarily raise reliance on the disease provisions. Further, with respect to the alleged injury to the neck, the current Application to Resolve a Dispute has alleged a “deemed” date of injury of 2 December 2010. Given that Mr Atkins continued to work on his usual duties until a date in July 2011, that date cannot be correct. If Mr Atkins does wish to rely on the disease provisions, it will be necessary for the Application to Resolve a Dispute to be amended to properly plead the alleged injury, deemed date of injury and the period over which the injury is alleged to have been caused;
(c) while several doctors have suggested that Mr Atkins’ neck symptoms are related to his heavy duties with the respondent, save for part of Dr Vote’s opinion, they have not expressed their opinions in the terms of the legislation. Further, Dr Kam and Dr Vote both stated, presumably in response to specific questions put to them, that Mr Atkins’ employment was a substantial contributing factor to his ongoing symptoms. That is not the test in the legislation. That was not the fault of the doctors. As usual in proceedings in the Commission, they were not asked the right questions. That was most unsatisfactory and should be addressed before the next hearing, and
(d) if the disease provisions are to be relied on, and the alleged injury is, for example, an aggravation of a disease, it will be necessary for the medical evidence to address whether the proposed surgery is reasonably necessary as a result of the aggravation. If that argument is accepted, and I express no opinion one way or the other, it will be necessary for a further non-binding report to be obtained from an AMS about whether the proposed surgery is reasonably necessary as a result of that injury.
CONCLUSION
For the reasons explained above, the appeal is successful. In view of the issues involved, and the unsatisfactory state of the pleadings and evidence, the matter must be re-determined before a different Arbitrator.
Two further matters should be borne in mind at the re-determination. If it is found that Mr Atkins injured his neck due to a specific incident on 2 December 2010, and that he did not suffer an injury due to the heavy nature of his work, his injury will be a personal injury, even if it has aggravated pre-existing degenerative changes in his cervical spine (Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648).
Last, I note that, relying on s 261 of the 1998 Act, the respondent has put notice of claim in issue. Given the history of the matter, that was surprising. If that matter is in issue at the re-determination, the parties are referred to Toll Pty Limited v Bartimote [2007] NSWWCCPD 153 and Shoalhaven City Council v Schutz [2012] NSWWCCPD 14.
DECISON
The Arbitrator’s determination of 19 February 2015 is revoked and the matter is remitted to a different Arbitrator for re-determination.
Bill Roche
Deputy President
3 June 2015
I, STEVEN HAMPSON, 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
2
14
0