Awder Pty Ltd t/as Peninsular Nursing Home v Kernick and anor - [2006] NSWWCCPD 222

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Awder Pty Limited t/as Peninsular Nursing Home v Kernick and Anor [2006] NSWWCCPD 222
APPELLANT:  Awder Pty Limited t/as Peninsular Nursing Home
FIRST RESPONDENT:  Rachael Kernick
SECOND RESPONDENT:  Manly Waters Private Hospital Unit Trust t/as Manly Waters Private Hospital
INSURER:Employers Mutual (NSW) Limited - Appellant
Vero Workers Compensation (NSW) Limited -Second Respondent

FILE NUMBER:  WCC19509-05
DATE OF ARBITRATOR’S DECISION:          4 April 2006
DATE OF APPEAL DECISION:  11 September 2006
SUBJECT MATTER OF DECISION: Section 9A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:  Acting Deputy President Michael Snell
HEARING:On the papers
REPRESENTATION:  Appellant: Edwards Michael Moroney
First Respondent: Somerville & Co
Second Respondent: Bartier Perry

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 4 April 2006 is confirmed.
The Appellant is to pay the First and Second Respondents’ costs of the appeal.

BACKGROUND TO THE APPEAL

On 28 April 2006 Awder Pty Limited t/as Peninsular Nursing Home (‘the First Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 4 April 2006.

The Respondents to the Appeal are Rachael Kernick (‘the Worker’), and Manly Waters Private Hospital Unit Trust t/as Manly Waters Private Hospital (‘the Second Employer’).

The Worker had been employed by both the First and Second Employers as an assistant in nursing. As against the First Employer, the Worker relied upon an incident on 30 July 2001 when she was attending to a patient in a tub chair, and an allegation the “nature and conditions of employment exacerbated that injury”. As against the Second Employer the Worker alleged the “nature and conditions of the Applicant’s employment with the Respondent exacerbated a previous injury to the lumbar spine”. The Worker had been employed by the First Employer from 24 May 2001 to 4 November 2002, and by the Second Employer from 2 December 2002 to 19 November 2003.

The Worker has not carried out any work since her employment with the Second Employer. The injury alleged was to the lower back, with associated sciatic symptoms. The Worker underwent surgery at the hands of Dr Little, neurosurgeon on 19 December 2003 and 13 April 2004. The First Employer accepted liability to make voluntary payments of weekly compensation, which were not the subject of dispute at the time the matter was heard (see T13.30). However there was an issue regarding the rate at which payments were to be made to the Worker. In addition to this claim for an alleged shortfall in the rate of weekly compensation, which was dealt with by consent (see T1.20), the Worker’s Application to Resolve a Dispute also claimed lump sums pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). The method of calculation of the Worker’s entitlement under these provisions depended upon findings regarding which of the alleged injuries were causative of the Worker’s permanent impairments and losses.

The Arbitrator noted he could not award the lump sum compensation claimed by the Worker, in the absence of assessment by an approved medical specialist (‘AMS’), which had not yet occurred. He outlined the matter before him for determination:

“14.This matter is yet to be referred to an AMS and this decision therefore relates only to a dispute concerning the date or dates of injury and hence as to which or either of the Respondents is/are liable for any compensation payable for Ms Kernick’s non-economic loss.

15. There is no dispute that Ms Kernick has suffered injury.”

The matter proceeded to arbitration hearing on 15 March 2006. All parties were legally represented. No application was made by any party to call oral evidence. Neither of the Employers sought to cross-examine the Worker. The Arbitrator’s Reasons for Decision are dated 4 April 2006.

THE DECISION UNDER REVIEW

The Arbitrator’s decision is recorded at paragraphs [65] to [68] of his Reasons for Decision, in the following terms:

“65.The Applicant suffered injury to her back on 30 July 2001 whilst in the employ of the First Respondent.
66.The First Respondent is liable for all of the Applicant’s work-related permanent impairment arising from the injury of 30 July 2001.

67.The dispute is to be referred to an Approved Medical Specialist (the ‘AMS’) to be chosen by the Registrar to assess any permanent losses to the Applicant’s back and left and right legs at or above the knee. The assessments of any losses are to be in accordance with the Table of Disabilities that existed before 1 January 2002. The Referral to the AMS is attached to this Statement of Reasons.

68.The dispute is to be referred back to an Arbitrator if the assessment of the AMS brings the Applicant an entitlement for pain and suffering compensation and for costs.”

ON THE PAPERS REVIEW

Section 354(6) of the Workplace Injury Management and Workers Compensation Act, 1998 (‘the 1998 Act) provides:

“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

I have before me transcript of the submissions made on behalf of all parties at the arbitration hearing, and written submissions by all parties on the appeal. I have all of the documentary material on which the Arbitrator based his Reasons for Decision. No party has sought leave to adduce fresh evidence. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by all parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

LEAVE

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

The amount of compensation claimed pursuant to sections 66 and 67 of the 1987 Act exceeds the sum of $5,000.00, referred to in section 352(2), by a significant margin. At this point in time, no amount of compensation has actually been awarded. However the decision of the Arbitrator clearly has the potential to put in issue the amount of compensation claimed by the Worker from the First Employer, which is the Appellant. This being so, the threshold test in section 352(2) is satisfied, notwithstanding that no amount of compensation has yet been awarded (see Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7 at [28]).

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

In the circumstances it is appropriate that leave to appeal be granted.

EVIDENCE AND SUBMISSIONS

Much of the evidence in the matter was uncontroversial. The Worker worked for the First Employer as an assistant in nursing from May 2001, she says on a full-time basis. There was no issue the Worker suffered a back injury in the manner alleged, in the First Employer’s employ, on 30 July 2001 (see T5.40). It was reported in writing on the same date (see statement of Ms McCarthy annexed to the First Employer’s Reply, at [15]). The Worker had a short period off work, and saw a general practitioner, Dr Goldman, whose two certificates were in evidence. A low back strain was diagnosed.

The Worker then continued working with the First Employer as an assistant in nursing, an occupation which was relatively physical; the Worker in her statement describes it as “heavy work”. In her statement she says she had ongoing back symptoms thereafter, and there was never a day she was free of back pain. There were days she could not attend work due to the back pain. One of the nurses gave her massages to help her keep going. She had difficulty moving patients, and had to be careful with the heavier tasks (at [5]). Notwithstanding this, Ms McCarthy (who had been the assistant director of nursing at the First Employer) in her statement says she never saw the Worker displaying any sign, at work after her injury, that she was having ongoing troubles with her back. The Worker was not consulting a doctor about her back, beyond the consultation with Dr Goldman on 2 August 2001.

The Worker’s job with the First Employer came to an end when she was dismissed on about 4 November 2002, after allegedly making a malicious allegation against a registered nurse. The Worker brought an ‘Application for Relief in Relation to Unfair Dismissal’, filed on 22 November 2002 in the Industrial Relations Commission of NSW. The outcome of this Application is not apparent. The Worker says that, by the time she was dismissed, she felt she was “at the end of (her) tether as far as working there was concerned” (at [6]).

The Worker started working with the Second Employer in December 2002, again as an assistant in nursing, but part-time. She described this work as “much lighter”, as the patients were more self sufficient. There was minimal lifting and turning (see her statement at [7]).

The Worker in her statement said “By mid 2003 the pain in my back was getting worse. On numerous days, I would lie on the floor to stretch my back out so I could keep going. My ability at work was getting less and less. I couldn’t keep up with the workload to the extent that, by November 2003, I was unable to keep the pain under control.” (at [8]).

The Worker consulted Dr Kardell at the Warriewood Medical Centre in November 2003. Dr Kardell’s report to the First Employer’s insurer, dated 8 July 2005, records a history on the initial consultation of “sciatica like symptoms pain running down both legs, posteriorly (sic) sudden onset for 3 days. There was no associated trauma, injury or lifting anything heavy. Past History: She suffered from sciatica years ago and was treated with panadeine forte tabs.” She consulted another general practice on 21 November 2003, where she saw Dr Norrie, whose report of 28 October 2004 records a history of back pain following the injury of 30 July 2001. There is a history of low back and left buttock pain developing after that injury.

The Worker then saw the neurosurgeon Dr Little on 11 December 2003. She gave a history of suffering low back and left buttock pain after the injury in 2001, which had never resolved, and had been worsening in the months preceding that consultation. On examination on 11 December 2003 the Worker was suffering significant symptoms in the left lower limb, including foot drop, in addition to her low back symptoms. Investigations revealed a large left sided disc protrusion at L4/5, against a background of congenital canal narrowing and disc degeneration at the lower three levels of the lumbar spine. Dr Little carried out a microdiscectomy on 19 December 2003. Subsequently there was worsening back pain and paraesthesia in the left leg. On 13 April 2004 Dr Little carried out “re-do surgery”, and found a “very adherent recurrent disc protrusion”.

The Worker’s claim form on the First Employer is dated 25 November 2003, and the First Employer accepted voluntary liability in the matter. As noted above, there was a dispute regarding the appropriate rate of weekly payments, which in part formed the subject matter of these proceedings, and was dealt with by consent. It is clear, from the submissions of the parties on the arbitration hearing, the real issue in the matter was whether a finding should be made that the Worker suffered injury in the employ of both the First and Second Employers, such that an apportionment of liability between the employers was appropriate, pursuant to section 22 of the 1987 Act. The First Employer did not assert the issue was to be decided on the basis of the ‘disease’ provisions in sections 15 and 16 of the 1987 Act (T6.5).

There were varying views in the medical reports regarding the significance of the incident of 30 July 2001, and whether the Worker’s duties with the Second Employer had resulted in a further injury. Dr Norrie, on the basis the Worker had continued working after the first injury, regarded it as “minor”, and regarded the work with the Second Employer as “the main cause of the current disc protrusion”. Dr Little described the Worker’s work with the First Employer at the time of the first injury as “a substantial contributing factor”, and the work with the Second Employer as “a lesser contributing factor”, to the impairments he assessed. Dr Blake, an orthopaedic consultant qualified in the Worker’s case, described the first incident, and then went on:

“The evidence indicates that, at this point, the disc ruptured, setting in course the gradual increase in the size of the disc protrusion and the progressive damage to the L5 nerve root to the left leg. In my view, it is very difficult to state with any authority what effect the less physically demanding work at the Manly Waters Private Hospital would have had on her back, as without any physical activity, it would still have been possible for her condition to progress as it did.
…
Her employment at the Peninsula Nursing Home was a substantial contributing factor to these impairments.”

Dr Machart, orthopaedic surgeon qualified in the First Employer’s case, said the Worker suffered a disc protrusion at L4/5 in the incident on 30 July 2001. He proceeded on the basis the Worker’s duties as an assistant in nursing with the Second Employer “by definition involves lifting of patients and strenuous activities straining the back”. On attributability he said:

“The major component to her pathology is injury on 30/7/01, with additional impact from working at Peninsula Nursing Home and at Manly Waters Private Hospital. In the absence of this work subsequent to her injury, I doubt that her symptoms would be so severe that there was going to be necessity for surgical intervention.”

In a supplementary report Dr Machart assesses various impairments and losses, and attributes one half of these to the injury and work with the First Employer, and one quarter to each of the work with the Second Employer, and to an underlying degenerative condition.

Dr Edwards, a general surgeon, was qualified by the insurer of the Second Employer. His report of 12 October 2004 conceded the possibility that the Worker’s duties with the Second Employer could have aggravated an already present lumbar disc protrusion, but concluded any such aggravation would have ceased within three or four months at the outside. Dr Edwards seemed unconvinced work with either of the employers was a substantial contributing factor to the Worker’s ongoing symptomatology.

The Arbitrator accepted the evidence of the Worker in her statement, that she “carried her injury into her employment with the Second Respondent”. He accepted the work with the second Employer “was not as hard as that with the First Respondent” (at [60]). He said he could not find “any indication that ‘something’ had occurred in the employ of the Second Respondent. No incident/injury was reported and nothing was recorded that would explain the ‘something’.” (at [61]) He stated he preferred the opinions of Drs Little, Blake and Machart over those of Drs Norrie and Edwards.

The essential finding of the Arbitrator, which led to the decision described at [7] above, is set out at paragraph [51] of his Reasons:

“Therefore I am satisfied that the 30 July 2001 incident was the primary and only substantial contributing factor in the chain of events with the nature and conditions of employment that followed with the two Respondents contributing, but not substantially, to aggravate and/or exacerbate Ms Kernick’s unresolved back disc problems, leading to two surgical procedures and a continuing and permanent impairment.”

The First Employer’s ‘Arguments in Favour of Review’ raise the following points:

(i)In relying upon the opinions of Drs Little and Machart to support his conclusion, the Arbitrator was effectively misquoting the evidence of those doctors, whose opinions are inconsistent with the Arbitrator’s conclusion.
(ii)The Arbitrator has failed to consider relevant evidence, being the Worker’s history to Dr Blake regarding her duties with the Second Employer, and the history recorded by Dr Kardell regarding the Worker’s “sudden onset” of symptoms shortly prior to the consultation in November 2003.
(iii)Having found (at [49] of his Reasons) that the “nature and conditions” of the Worker’s employment with the Second Employer caused injury in the form of exacerbation, it was not then open to the Arbitrator to find such employment was not a ‘substantial contributing factor’, pursuant to section 9A of the 1987 Act. The reason for this is that such employment was the only factor in terms of the exacerbation, and it therefore must have been substantial, at least as regards the exacerbation.
(iv)The Arbitrator failed to comprehend the First Employer’s submission regarding the significance of the Worker’s symptomatic change, in circumstances where she was carrying out employment related activity.
(v)The referral to the AMS is in error, as it relates only to the injury of 30 July 2001. (This hardly amounts to a separate basis of appeal. The nature of the referral flowed from the decision on causation and section 9A at which the Arbitrator arrived. If those findings require variation, the referral to the AMS may require consequent variation.)

The First Employer filed a document headed “Appellant’s Supplementary Submissions in Favour of s.352 Appeal”. That document expresses itself as being “supplementary to and in clarification of those (submissions) filed with the appeal”. The supplementary document in part clarifies, and in part raises some new matters. The matters raised are:

(i)The Arbitrator considered an irrelevant matter, being the comparative strenuousness of the Worker’s duties with the First Employer, and the Second Employer. Having found (at [49] of his Reasons) that injury had been suffered due to the duties with the Second Employer, it then became irrelevant whether such duties were more or less strenuous that those with the First Employer.
(ii)The Arbitrator considered an irrelevant matter, being the absence of a “frank injury” with the Second Employer. Again, having found injury due to the duties with the second Employer, it was then irrelevant that there was no “frank injury” in addition to the injury occasioned by the work duties.
(iii)The Arbitrator erred in his approach to section 9A. In particular, his statement at [62] of his Reasons, that the Worker’s condition when she ceased work in November 2003 was “an event that was going to happen anyway as a natural progression of her July 02 disc injuries”, failed to properly expose his reasoning process in applying section 9A(2)(d), if this is what he was doing. Furthermore, the medical opinion on which he purported to rely, in reaching this conclusion, did not support the conclusion.
(iv)The Arbitrator’s decision failed to give sufficient weight to the significance of various aspects of the history, including (but not limited to) the gap in medical treatment subsequent to the first injury, the lengthy period of work after that injury, the failure to lodge a claim form with the First Employer until November 2003, and the history of sudden onset sciatica recorded by Dr Kardell in November 2003.
(v)The supplementary submissions then go on to a more general discussion regarding the principles governing the operation of section 9A, and the fact that an incapacity or impairment can result from more than one injury.

The Notice of Opposition to the appeal, filed on the Worker’s behalf, makes reference to the principles governing Presidential appeals as enunciated in Fishburn v Integral Energy Australia [2005] NSWWCCPD 53. It is submitted the First Employer has not demonstrated error which would fall within those principles. The Worker’s Notice of Opposition was filed prior to the filing and service by the First Employer of its supplementary submissions. The Worker’s submissions also discuss the decision of Burke J in Harpur v State Rail Authority of NSW (2000) 19 NSWCCR 256, in support of the argument the Arbitrator’s conclusion based upon section 9A was a correct one. In addition, there are submissions on the Worker’s behalf analysing the medical evidence, and pointing out the opinion of Dr Machart (in the first Employer’s case) was based upon a view of the Worker’s duties with the Second Employer inconsistent with the Worker’s statement. In this regard, the point is made that the First Employer did not seek to cross-examine the Worker on this subject.

The Second Employer also has filed a Notice of Opposition to the appeal, submitting the Arbitrator’s decision should stand. Those submissions deal with the medical evidence, together with the evidence in the Worker’s statement (and some medical histories) regarding the employment duties with the Second Employer being relatively light in nature. The Second Employer correctly observes the First Employer did not challenge the Worker’s evidence on this subject. It is submitted the weight of the evidence overall supports the conclusion the Arbitrator reached, and that he has correctly applied section 9A in the circumstances.

DISCUSSION AND FINDINGS

In considering whether the Worker had suffered compensable injury in the employ of the Second Employer, it was necessary firstly for the Arbitrator to deal with the question of whether, on the evidence overall, he was satisfied an injury had occurred. If he was so satisfied, it was necessary that he consider the provisions of section 9A, in deciding whether the injury was compensable. Whether “the employment concerned was a substantial contributing factor to the injury” for the purposes of section 9A is a question to be decided on the evidence overall, including a consideration of the matters described in section 9A(2). It is not purely a medical question.

The Arbitrator made a finding, expressed at [49] of his Reasons, that “The nature and conditions of employment with the Second Respondent from December 2002 until Ms Kernick ceased work on 15 November 2003 had further exacerbated the unresolved 30 July 2001 injury.” The evidence to support this finding was not, in my view, compelling. The Worker’s unchallenged evidence in her statement was that her duties with the Second Employer were “much lighter than at Peninsular”, and there was “minimal lifting and turning required, and when there was, another nurse would be available to assist, as well, there were fulltime physios on hand to help” (at [7]). By the time she started at the Second Employer she had not had a day free of back pain for nearly eighteen months, subsequent to the original injury. The Worker, in her unchallenged statement, does not identify any aspect of her duties with the Second Employer as aggravating her symptoms.

The main factor in favour of a finding of injury with the Second Employer was the increase in symptoms which occurred in the latter half of 2003, leading to the Worker’s need for treatment, and cessation of work. However, as was observed by Neilson J in Lyons v Master Builders Association of NSW (2003) 25 NSWCCR 422 (‘Lyons’):

“A frank injury can set in train chondromalacia patellae, which is a progressive degenerative condition. That condition can worsen with the passage of time. That does not mean that what the patient is doing at the relevant time is causing the condition or making it worse, the condition deteriorates of its own momentum. Although the applicant admits to some deterioration of symptoms whilst working at Masonry Works, that might be the inevitable progression of the chondromalacia patellae rather than the effect of the work that the applicant was then doing.” (at [18])

There is, however, some support in the medical evidence for the proposition the Worker suffered further injury caused by her duties with the Second Employer. Dr Norrie regarded such duties as the “main cause”. Dr Little regarded such duties as “a lesser contributing factor”. Dr Blake thought it “very difficult to state with any authority what effect the less physically demanding work at the Manly Waters Private Hospital would have had on her back”. Dr Edwards thought the duties with the Second Employer may have aggravated the problem, but only for a period, such aggravation having ceased. Dr Machart thought the duties with both employers, after the frank incident, worsened the symptoms to the point where surgery was necessary, and attributed one quarter of the Worker’s permanent losses and impairments to the effect of the duties at the Second Employer. However Dr Machart’s understanding of what such duties involved does appear erroneous. He described them as “normal duties, without restrictions”, and later observed “This work, AIN (assistant in nursing), by definition involves lifting of patients and strenuous activities straining the back”. This is not consistent with the Worker’s description of such duties in her unchallenged statement. As a consequence, Dr Machart’s views on the topic are deprived of much, if not all, of their weight (see Makita (Australia) Pty Limited v Sproules (2001) 52 NSWLR 705 at [85]).

Thus the medical evidence on the point (leaving Dr Machart to one side) is ambivalent. There is an unchallenged history of unremitting back pain after 30 July 2001. The Worker’s statement described her symptoms as “getting worse for no particular reason” during the period she was not working, between the two employments, consistent with the concept the symptoms were deteriorating for reasons not necessarily connected with her work activities. The evidence of the Worker does not identify any particular aspect of the duties at the Second Employer as causing symptomatic aggravation, and describes such duties as “much lighter” than her original duties with the First Employer. I would come to a different conclusion to that reached by the Arbitrator, on the question of whether it had been proved, on the balance of probabilities, that the Worker had received an injury caused by her duties at work with the Second Employer, for the purposes of section 9A(1) of the 1987 Act.

This however does not amount to error which should be corrected on appeal. There was evidence before the Arbitrator capable of supporting the conclusion which he reached on this point. In discussing the function of a Presidential member on appeal, Fleming DP in South Western Sydney Area Health Service v Edmonds [2005] NSWWCCPD 18 said:

“The relative weight and relevance to be given to evidence is a matter for the discretion of the Arbitrator (see discussion in Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSW WCC PD 26). It is only where the Arbitrator can be said to have failed to exercise his discretion fairly and according to law that his decision should be overturned. This occurs where the Arbitrator has acted upon a wrong legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts or failed to take into account relevant and material considerations (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, Re National Roads and Motorists Association Ltd [2003] FCAFC 206 at [21] to [21]).

Having found ‘injury’, the Arbitrator was then required to consider whether section 9A was satisfied. That section is in the following terms:

“(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c)the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f)the worker’s lifestyle and his or her activities outside the workplace.

(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a)the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b)the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.

(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”

It has been held, by Neilson J in Lyons, the word “injury” refers to both the event and the pathology arising from it.
The operation of section 9A was considered by the NSW Court of Appeal in Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740 (‘Mercer’):
“Here the word “substantial” qualifies “contributing factor”. Obviously it is the extent of the causal link which is at issue. Judge Bishop recognised this. At par 29 of his judgment he held that the meaning to be adopted was that “substantial” meant “more than minimal, large or great”. In my view this was the correct approach, remembering that word is used in a relative sense, recognising that other causative factors may be present. Section 9A does not require that the employment must be “the” substantial contributing cause, nor does it attempt to exclude predisposition or susceptibility to a particular condition (cf University of Tasmania v Cane (1994) 4 Tas R 156)” (per Mason P at [27]).
The judgment of the NSW Court of Appeal in Supair Pty Ltd v Sweeney (2000) 20 NSWCCR 514 holds that, having regard to section 9A(3), the fact that an injury occurs in the course of or arising out of employment may be relevant to whether section 9A is satisfied, but is not determinative of the issue (per Meagher JA at [9]).
Section 9A was again considered by the NSW Court of Appeal in Dayton v Coles Supermarkets Pty Ltd (2001) 22 NSWCCR 46 (‘Dayton’). In that case the incapacitating condition was schizophrenia. It was found by the trial judge the major causative factors in the condition were a genetic susceptibility, and prolonged marijuana use. The trial judge found the alleged work incidents constituted “a ‘rather minor’ factor in the aetiology of the disease, although perhaps constituting a triggering factor in an otherwise latent condition”. The trial judge held the employment was not a substantial contributing factor to the schizophrenia, finding the contribution of the employment factors to be minor. The appeal was unanimously dismissed. Notwithstanding that the employment incidents may have acted as a trigger, Meagher JA rejected an argument they could be regarded as ‘substantial’, in the light of the finding of fact that they were a minor factor in the aetiology of the condition. Davies AJA said:
“37 Likewise, in their context and particularly having regard to the list of factors specified in s 9A(2), the words “substantial contributing factor” require that compensation be paid only when the employment can be said to have contributed to the injury in a manner that is real and of substance. The section intends to exclude those many instances where, as a result of legal theory and extension of thought, liability has been found in cases where, as a matter of practical reality, the contribution which employment has made to the injury has little substance.
38 So interpreted, the section appears to me to have a clearer and more appropriate application than if the word “substantial” were used in the sense of words such as “serious”, “weighty”, “important”, “sizeable” or “large”, terms to which the trial Judge referred. The word “substantial” may be used appropriately in a range of circumstances. A matter which is large or weighty is also substantial. However, a matter may be substantial without necessarily being large or weighty. In s 9A, it is sufficient that the contribution be substantial.
39 I do not suggest that words other than those used by the section should be applied. The section uses the word “substantial”. Before ordering that compensation be paid, a court must be satisfied that the contribution of the employment was a substantial contributing factor to the injury. A decision as to what is or what is not substantial is a judgment which will not readily be set aside by an appellate court, particularly one whose jurisdiction is limited to errors of law.”
Having found injury, it was legitimate for the Arbitrator to take into account the various examples given in section 9A(2) (in so far as they were relevant to the case), in considering whether section 9A was satisfied. He mentioned a number of such factors which were relevant. Section 9A(2)(b) nominates “the nature of the work performed and the particular tasks of that work” as an example of a matter to be taken into account. The Arbitrator considered this at [60] of his Reasons. He clearly regarded the fact that the duties with the Second Employer were lighter than those with the First Employer as a factor militating against a conclusion that section 9A was satisfied. Section 9A(2)(d) nominates “the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked at that employment” as an example of a matter to be considered. The Arbitrator considered this at [51] and [60] of his Reasons. He made a finding of fact that the Worker’s condition when she ceased work in November 2003 was as it would have been due to the natural progression of her injury of 30 July 2002, with or without the aggravation from the work duties with the Second Employer. Section 9A(2)(e) nominates “the worker’s state of health before the injury” as a matter to be considered. The Arbitrator at [60] deals with this, saying “I accept that Ms Kernick carried her injury into the employment with the Second Respondent”. As occurred in Dayton, it is legitimate to consider the various factors which contribute to the pathology, in considering whether employment was a substantial contributing factor. To pick up the language quoted at [39] above from Mercer, the Arbitrator was considering “the extent of the causal link”.
The first of the specific matters raised by the First Employer in its Arguments in Favour of Review relates to the Arbitrator’s reliance upon the opinions of Drs Little and Machart. It is said the opinions of those doctors do not support the Arbitrator’s conclusion. In so far as Dr Machart is concerned, this is true. His views, if accepted, would be consistent with a conclusion the Worker’s employment with the Second Employer had been a substantial contributing factor to her injury. However, for reasons discussed at [34] above, Dr Machart’s views were, in my opinion, entitled to little if any weight on the question of causation, because the factual basis on which his view was based was not supported by the evidence overall, in particular the unchallenged evidence of the worker.
As regards Dr Little, the only history of injury recorded in his report is that of 30 July 2001. There is no history recorded of what the Worker’s duties with the Second Employer involved, nor any history of those duties causing symptomatic aggravation. He concedes employment with the Second Employer would have been contributory, but not the primary or major cause of the Worker’s disc protrusion. He describes employment with the First Employer as “a substantial contributing factor”, and that with the second Employer as “a lesser contributing factor”. This, of course, does not decide the matter one way or the other, a factor can be substantial without being the major factor. However, as was observed by Giles JA in Dayton, a finding as to relative contributing factors is a question of impression and degree. I would not regard the opinion expressed by Dr Little, when his report is read as a whole, as being inconsistent with the conclusion reached by the Arbitrator on section 9A.
Furthermore, the relevant passage (at [63] of the Arbitrator’s Reasons) involves preference “generally” not only for the views of Drs Machart and Little, but also Dr Blake. Dr Blake’s views would, in my opinion, support the conclusion reached by the Arbitrator on section 9A. This is particularly so in relation to the matters described in section 9A(2)(d). Thus, although the expression by the Arbitrator of his acceptance of Dr Machart’s views, amongst others, might suggest a misreading of Dr Machart’s views, it is not an error which would effect the result. The other medical opinion preferred by the Arbitrator was consistent with the conclusion drawn, and in so far as the opinion of Dr Machart would lead to a contrary conclusion, his views had been deprived of persuasive weight by the matters discussed at [34] above.
There are a number of matters raised by the First Employer in its Arguments in Favour of Review and Supplementary Submissions, which assert a failure by the Arbitrator to adequately consider relevant evidence. I will deal with them in turn.
It is said the Arbitrator failed to consider the Worker’s history to Dr Blake that the Worker’s duties with the Second Employer were “pretty demanding”. The history recorded by Dr Blake, at page 2.2 of his report, dealing with the duties at the Second Employer, does use the phrase “pretty demanding”, and does refer to a need for the Worker to assist patients with toileting, together with a need to bend over beds. However read in its entirety it also records the work at the Second Employer was “not physically as heavy”, notes the availability of physiotherapists to walk the patients, and notes there was still some lifting, but using lifting equipment. The Arbitrator did not refer specifically to this history, but he was not bound to do so. Furthermore the history, taken overall, is consistent with the conclusion the work with the Second Employer was significantly lighter than that with the First Employer. Most importantly, the Arbitrator, in reaching a conclusion regarding the relative heaviness of the duties in the two employments, has relied upon the statement of the Worker, which was not challenged (paragraph [50] of his Reasons). His failure to specifically refer to each and every one of the histories recorded by doctors in the case does not amount to error. Furthermore, the fact that Dr Blake records a reasonably full history of the Worker’s work activities with the Second Employer, adds to the weight of his opinion as regards causation.
It is true the Arbitrator does not specifically refer to the history recorded by Dr Kardell in November 2003 (referred to at [19] above), of a sudden onset of symptoms three days prior to the consultation. However that report of Dr Kardell is referred to at [28] of the Arbitrator’s Reasons, as being one of the documents taken into account, in so far as it was logically probative. The use the First Employer sought to make of that report can be gauged from the submissions on its behalf at T9.20 to T10.15. It was not urged upon the Arbitrator that any great significance should be attached to the history of “sciatica years ago”. However the First Employer addressed on the failure of the history, as recorded in that report, to refer to the injury on 30 July 2001, and also the three day history of sciatica. The significance of this history must be balanced by the existence of other histories, recorded by treating doctors at around that time. Dr Norrie, on 21 November 2003, recorded a history of the incident on 30 July 2001, causing low back and left buttock pain. He also recorded a history of gradually increasing left buttock and leg pain, at the time the Worker was employed by the Second Employer (my emphasis). Dr Little, on 11 December 2003 recorded a history generally consistent with that taken by Dr Norrie. In addition, the somewhat truncated history recorded in the report of Dr Kardell is inconsistent with the history in the Worker’s statement, which was not the subject of challenge.

The First Employer’s Arguments in Favour of Review assert error in the Arbitrator’s “complete failure to deal with report with (sic) Dr W Kardell”. The Arbitrator’s Reasons specifically indicate he did take the report into account. What he has not done is discuss it in his Reasons. Whether employment is a substantial contributing factor, for the purposes of section 9A, is a question of fact (Dayton, Workcover Authority of NSW v Walsh [2004] NSWCA 186). In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Mahoney JA said:
“In my opinion, the law does not require that a judge make an express finding in respect of every fact relevant to, or leading to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion.” (at 271C)
In my view, the failure of the Arbitrator to specifically discuss the report of Dr Kardell in his Reasons does not amount to error which requires interference on this appeal.
Error is asserted in failure by the Arbitrator to give sufficient weight to a number of matters outlined at [8] of the First Employer’s original Arguments in Favour of Review, and [13] of the Supplementary Submissions. The matters referred to in those paragraphs effectively restate various matters, put on the First Employer’s behalf, before the Arbitrator, in support of the submission the Worker had suffered compensable injury in the employ of the Second Employer. The fact the Arbitrator was not sufficiently swayed by those matters to make the findings urged upon him by the First Employer, does not amount to error of law requiring interference by me on appeal. The principles governing appeals pursuant to section 352 of the 1998 Act are usefully set out in the judgment of Fleming DP in Babylon Property & Cleaning Service v Hormoz [2005] NSWWCCPD 21:
“14. The consideration of the evidence and the weight to be attached to the evidence is entirely a matter for the Arbitrator. In the absence of demonstrable error by the Arbitrator in arriving at the decision it should not be disturbed. Presidential review (pursuant to section 352 of the WorkplaceInjury Management and Workers Compensation Act 1998 (‘the 1998 Act’)) is not a rehearing where a matter is heard de novo based on all of the evidence available at a later time (Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Syd.) Pty Ltd (1976) 135 CLR 616).
15. The errors alleged by the Employer are largely matters of discretionary judgement by the Arbitrator, on the basis of his view of the evidence before him. As with any exercise of discretion by an administrative decision maker, this discretion must be exercised lawfully and fairly, taking into account the scope of the discretion and the objects of purpose for which it is conferred. It is only where the Arbitrator can be said to have failed to exercise his discretion fairly and according to law that his decision should be overturned. This occurs where the Arbitrator has: acted upon a wrong legal principle; allowed irrelevant considerations to influence the decision; made a material mistake as to the facts or failed to take into account relevant and material considerations (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, National Roads and Motorists’ Association Ltd [2003] FCAFC 206 at [21] to [21]).
Error is not demonstrated by the Arbitrator’s failure to accede to the First Employer’s arguments based upon these matters. In so far as the matters are not specifically referred to in the Arbitrator’s Reasons, the remarks of Mahoney JA in Soulemezis quoted at [49] above, again are of relevance.
The balance of the First Employer’s submissions deal with the Arbitrator’s approach to section 9A, and his determination employment with the Second Employer was not a substantial contributing factor to the Worker’s injury. The argument in essence is that, having found the Worker’s duties with the Second Employer resulted in exacerbation of the earlier disc injury, it was not then logically sound for the Arbitrator to find such employment was not a substantial contributing factor. The argument is expressed at [6.2] of the Arguments in Favour of Review in this fashion:
“6.2The Arbitrator then purports to find that while employment with MWPH was a contributing factor, it was not a substantial contributing factor (apparently referring to the terminology of section 9A).
The Arbitrator has erred in relation to the adoption of this test. The only finding open to the Arbitrator, given paragraph 49 and 51 of his Statement of Reasons, is that employment with MWPH was the only contributing factor in terms of the exacerbation or aggravation sustained with that employer. No other factors were evident.”
However there were other factors. As is pointed out by the First Employer in its supplementary submissions, the word “injury” refers to both the injurious event, and the pathology resulting from that event: Lyons. In this case the pathology is the disc protrusion at L4/5. On the evidence, the disc protrusion had a number of causes. These were (possibly) underlying degenerative change, the incident on 30 July 2001, and the nature and conditions of the Worker’s employment with both employers, subsequent to 30 July 2001. It is clear, from how the Arbitrator expressed his finding of injury caused by the nature and conditions of employment with both of the employers, at [51] of his Reasons, that he regarded the aggravation resulting from such work duties as only a minor part of the cause of the pathology. However having found such aggravation, he was then required by section 9A to consider whether such employment was a substantial contributing factor to the injury.
This required that he consider the extent of the causal link: Mercer. As in Dayton, it became necessary to consider whether the employment had contributed to the injury in a manner that was real and of substance. In carrying out this task, the Arbitrator was required to take into account the examples set out in section 9A(2) in so far as they were of relevance. He has had regard to the examples to be found at section 9A(2)(b), 9A(2)(d) and 9A(2)(e), as referred to at [42] above.
Having regard to these matters, which the Arbitrator validly considered, he concluded section 9A was not satisfied, and accordingly compensation was not payable in respect of the injury he had found in the employ of the Second Employer. It was a conclusion he was entitled to reach on the evidence. It is worth noting the observation by Giles JA in Dayton:
“The finding as to relative contributing factors is a finding of fact. As his Honour said, it is a question of impression and degree; see also the recognition in Mercer v ANZ Banking Group Ltd that there is ‘a broad area within which the personal judgment of the individual judge as to what is ‘substantial’ may be determinative’ (at 748-749)” (at [29])
Davies AJA also observed in Dayton:
“A decision as to what is or what is not substantial is a judgment which will not readily be set aside by an appellate court, particularly one whose jurisdiction is limited to errors of law.” (at [39])
My jurisdiction is not, of course, in dealing with an appeal pursuant to section 352, limited to errors of law. However these passages do suggest a Presidential member should exercise restraint, in considering whether to set aside a finding by an Arbitrator pursuant to section 9A, where that finding is reasonably available on the evidence.
Accordingly, I am not of the view the approach taken by the Arbitrator in dealing with section 9A demonstrated error.
The supplementary submissions of the First Employer also assert the Arbitrator erred in considering irrelevant matters. These are described as the “comparative physical demands of employment”, the “absence of frank injury” with the Second Employer, and the “conclusion that incapacity was going to happen anyway”. As discussed above, the first and third of these were, in my view, matters for valid consideration having regard to section 9A(2). As regards the second of these matters, I accept the Arbitrator’s consideration of the absence of a frank injury with the Second Employer was an irrelevant consideration. However, there is no indication a consideration of that matter was in any way determinative of the conclusion the Arbitrator reached on section 9A, and I am not satisfied it effected the result.
The Arbitrator’s consideration of matters pursuant to section 9A(2)(d) is also attacked, on the basis that the Arbitrator did not state that to be the statutory provision with which he was dealing. It was tolerably clear the Arbitrator was considering the application of section 9A. Clearly the examples contained in section 9A(2) were relevant to that consideration, in so far as they arose on the facts of the case. I would not regard the Arbitrator’s failure to specifically spell out which of the sub-sections of section 9A(2) he was dealing with, from time to time, as amounting to error.
It is also submitted the Arbitrator erred, in that the opinions of the three doctors he purported to accept did not necessarily support the conclusion he reached on section 9A. This submission is largely dealt with at [34], [43], [44] and [45] above. The conclusion reached by the Arbitrator did not simply involve a medical question. It also involved a consideration of the lay evidence, in particular the unchallenged evidence of the Worker in her statement. The conclusion reached was reasonably open on the evidence overall, part of which was the medical evidence.
For the above reasons, I am of the view the appeal should be dismissed.

DECISION

The decision of the Arbitrator dated 4 April 2006 is confirmed

COSTS

The Appellant is to pay the First and Second Respondents’ costs of the appeal.

Michael Snell
Acting Deputy President
11 September 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE