Barrow v Greater Western Area Health Service
[2008] NSWWCCPD 32
•17 March 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Barrow v Greater Western Area Health Service [2008] NSWWCCPD 32
APPELLANT: Anne Maree Barrow
RESPONDENT: Greater Western Area Health Service
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER: WCC6507-07
DATE OF ARBITRATOR’S DECISION: 6 November 2007
DATE OF APPEAL DECISION: 17 March 2008
SUBJECT MATTER OF DECISION: Weight to be given to expert evidence; application of Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners
Respondent: TurksLegal
ORDERS MADE ON APPEAL: Paragraph three of the Arbitrator’s amended determination of 6 November 2007 and subparagraph three of paragraph 56 of the Arbitrator’s Amended Statement of Reasons for Decision are revoked and the following determination made:
“3.That the application for lump sum compensation under section 66 of Workers Compensation Act 1987 with respect to permanent impairment of the Applicant worker’s neck and permanent loss of efficient use of her right arm at or above the elbow and permanent loss of efficient use of her left arm at or above the elbow is remitted to the Registrar for referral to an Approved Medical Specialist for assessment under the Table of Disabilities for an injury received before 1 January 2002.”
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal, certified at $550.00 plus GST.
INTRODUCTION
This appeal concerns the application of the principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 and the Arbitrator’s assessment of expert evidence in determining whether the worker’s neck and shoulder symptoms have resulted from an altered posture caused by a serious back injury sustained some years before.
BACKGROUND TO THE APPEAL
Anne Barrow (‘the Appellant Worker/Mrs Barrow’) injured her back in the course of her employment as a cleaner at Dubbo Base Hospital (‘the Respondent Employer/the hospital’) on 31 May 2000. Investigations revealed an L5/S1 disc prolapse for which she underwent a partial diskectomy on 21 March 2001 and then a lumbar fusion on 13 September 2001.
On 18 November 2002 she filed an Application for Determination in the former Compensation Court of NSW seeking lump sum compensation in respect of impairment of her back and loss of use of each leg at or above the knee. This claim was settled on 21 August 2003 as follows:
“1.That the Respondent pay to the Applicant $15,000.00 in respect of a 25% permanent impairment of the back pursuant to section 66.
2.That the Respondent pay the Applicant $7,500.00 as lump sum compensation under section 66 in respect of 10% permanent loss of efficient use of the right leg at or above the knee.
3.That the Respondent pay to the Applicant $3,750.00 as lump sum compensation under section 66 in respect of a 5% permanent loss of efficient use of the left leg at or above the knee.
4.That the Respondent pay the Applicant $18,750.00 in respect of section 67.”
Additional orders were made as to interest and costs that are of no relevance to the current claim.
On 27 August 2007 Mrs Barrow’s solicitor, Mr McCabe, filed an Application to Resolve a Dispute (‘the Application’) in the Commission. This Application, excluding attachments, is 48 pages in length and includes dozens of pages of material that are not only totally irrelevant to the claim, but are also misleading. The Application to Resolve a Dispute must provide, in a short and succinct form, the information required in Form 2 so that the Respondent and the Commission can quickly and easily identify the nature of the relief being claimed. If a party wishes to attach a separate document setting out relevant submissions in support of the claim, that can be done but those submissions should not be included in the body of the Form 2 application. The practice of including pages and pages of irrelevant material in the body of the Application must stop.
Mrs Barrow now claims additional lump sum compensation. First, she claims additional lump sum compensation in respect of her back and legs. Second, she claims lump sum compensation in respect of an alleged 70% permanent loss of use of sexual organs. These claims have been referred to an Approved Medical Specialist (‘AMS’) and are not relevant to appeal. Last, she claims lump sum compensation in respect of a 10% permanent impairment of her neck and a 5% permanent loss of use of each arm at or above the elbow, alleged to have resulted from “an altered gait and posture” (see page eight of the Application) due to her back injury and consequential surgery.
After a contested arbitration on 24 October 2007, the Arbitrator delivered a reserved decision on 2 November 2007 (amended on 6 November 2007 to delete the word “back” from paragraph three and insert the word “neck”) in which he made the following determinations:
“BY CONSENT
1.That the application for compensation pursuant to s66 in respect of permanent loss of the back and permanent loss of efficient use of both legs be adjourned to the Registrar for allocation to an Approved Medical Specialist.
2.That the applicant have leave to request a further teleconference to deal with the application pursuant to s60 in the event that the respondent fails to pay the applicant $2000 for the provision of a bed and her outstanding HIC claim within 28 days.
AND FURTHER
3.Award for the respondent in respect of the claim for permanent impairment of the neck and permanent loss of efficient use of both arms.
4.That any report or advice from Dr Stephenson and produced pursuant to the oral direction made on 24 October 2007 be admitted.
5.That the application for compensation pursuant to s66 with respect to permanent loss of effective use of sexual organs be adjourned to the Registrar for referral to an Approved Medical Specialist.
6.That it was appropriate in the circumstances of this application for the applicant to obtain a Factual Investigation Report.
7.That costs in this matter to this stage be subject to a 17.5% uplift due to the complex issues involved.”
Mrs Barrow seeks leave to appeal the Arbitrator’s determination so far as it relates to the award for the Respondent Employer in respect of the claim for lump sum compensation for the neck and arms.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in respect of the claim for lump sum compensation for the neck or arms and the Arbitrator’s finding will result in the Appellant Worker receiving no compensation in respect of that part of the claim and, therefore, the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The matters in issue on appeal have not been easy to extract from the submissions filed by Mr McCabe. Doing the best I can, the issues in dispute in the appeal appear to be whether the Arbitrator erred in:
(a)misunderstanding the legal tests to be applied in “regards to the Applicant’s injury to her neck and right and left shoulders” (Appellant Worker’s submissions 29 November 2007, page 10);
(b)thinking that the injury to Mrs Barrow’s neck and shoulders “had to be derived from the injury to her back” (Appellant Worker’s submissions 29 November 2007, page 10);
(c)failing to apply an appropriate legal test in “considering the allegations of injuries to Mrs Barrow’s neck and shoulders, which resulted from the necessary rehabilitation treatment” (Appellant Worker’s submissions 29 November 2007, page 11);
(d)misdirecting himself when he referred at paragraph 30 of his Statement of Reasons for Decision (‘Reasons’) to the absence of radiological evidence of trauma to the neck;
(e)wrongly directing his determination to the pathological signs and symptoms rather than how the part of the body in question functions in practice (Appellant Worker’s submissions 29 November 2007, page 12), and
(f)failing to give adequate reasons as to why he preferred Dr Bosanquet’s evidence over that of Dr Mahony (see letter from Mr McCabe dated 22 January 2008);
The above issues should have been clearly “enumerated and precisely stated” (as required by Form 9) at the beginning of the submissions, not scattered through the document in a rambling disordered way.
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; (2006) 4 DDCR 358 (‘Zheng’) where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
SUBMISSIONS AND FINDINGS
Essentially, the Appellant Worker argues that the Arbitrator applied the wrong legal test in determining if Mrs Barrow’s neck and shoulder condition has resulted from her accepted injury to her back. Whilst it is difficult to discern from the Application and the submissions on appeal, the essence of the claim is that as a result of her injury in May 2000 Mrs Barrow suffered a serious back injury for which she has undergone surgery in the form of a laminectomy and, later, a lumbar fusion. It is argued that, as a result of her initial back injury and her treatment for that injury, Mrs Barrow has suffered a consequential impairment of her neck and loss of use of each arm at or above the elbows.
The evidence in support of Mrs Barrow’s claim is found in her statement of 23 May 2005 and in the medical report of Dr Mahony dated 18 October 2005. Since her last back operation, Mrs Barrow has found it difficult to stand up straight and she feels that, as a result, she has altered her gait and now finds that she is suffering pain in her neck with pain radiating down the right and left arms (Mrs Barrow’s statement, paragraph 64). She added that “I am constantly walking around in a stooped position and this has put a lot more weight upon my neck and is causing pain radiating down both arms”. This statement followed her comment at paragraph 63 that:
“The pain in my back feels like I have a very, very heavy weight on my head and shoulders and this is forcing downward pressure on my back with a dragging feeling in my lower back.”
Dr Mahony took a history of her back injury in 2000, the subsequent surgery, and noted her “present complaints” to include pain in the back of her neck radiating to the occipital area and to the shoulders, and pain in the mid back. The neck, mid back, and shoulder symptoms commenced over a couple of months prior to his examination on 13 October 2005. On examination there was little neck movement because of guarding and she held her neck in a flexion position of about 15 degrees. Dr Mahony also noted that Mrs Barrow walked “with difficulty in a stooped fashion” (page two). Under “opinion” Dr Mahony concluded, after referring to Mrs Barrow’s back problems:
“She has added symptoms referrable to a cervical strain with radiating pain into the shoulders, the occipital headaches being referred from the neck as well as a thoracic strain and it is consistent that these added symptoms are associated with altered spinal posture being indirectly related to her low back condition.”
The Respondent Employer relies on a report from Dr Bosanquet, dated 19 July 2007, who noted her to have full movement of her neck and arms. He did not agree that Mrs Barrow has sustained an injury to her neck and arms as a result of the injury to her back but did not provide any reasons for that conclusion.
The Arbitrator referred to the evidence from Dr Mahony and Dr Bosanquet and stated at paragraph 28 of his Reasons that the question of whether or not the pain in Mrs Barrow’s neck and arms is the result of the injury to her back can only be determined after a consideration of the expert evidence. Whilst expert evidence will be critical to the determination of a claim such as the present, lay evidence setting out the history on which the expert evidence is based is also essential and must be carefully considered.
The Arbitrator then referred to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (Makita) and concluded at paragraph 30 that Dr Mahony:
“…does not set out the process that led to his conclusion that the neck pain was derived from the back injury such that I can test his conclusions and make a judgement about their reliability. He had no radiological evidence of trauma to the neck, he does not appear to have investigated any other possible causes. When Dr Mahoney saw Mrs Barrow over four years had elapsed since the operation in 2001 and five years since the frank injury. I am unable to assess how Dr Mahoney reached his conclusion and consequently I am not prepared to accept his conclusion as to the cause of any injury to Mrs Barrow’s neck or arms.”
The principles in Makita were considered and applied in Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 (Hevi Lift) and South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; (2007) 4 DDCR 421(Edmonds). In Edmonds, McColl JA made the following observation (at [130]) about the relevance and applicability of the Makita principles in the context of proceedings in the Commission:
“130 In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that ‘[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it’. In so saying, I referred with approval (inter alia) to Heydon JA’s analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59] – [82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that:
‘... the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’”
The Court of Appeal held that the Arbitrator erred in Edmonds in accepting the evidence of Dr Rivett that “in general all the problems are work-related” (at [132]) in circumstances where he had no description of the worker’s duties that might have provided a factual basis for that proposition (at [137]). Whilst Mrs Edmonds felt that her left knee and back symptoms arose from the fact that she favoured her right leg as a consequence of her work injury, Dr Rivett did not indicate whether that was a valid proposition.
In the present matter, Dr Mahony took a history that Mrs Barrow walks with difficulty in a stooped fashion, that is, with altered spinal posture. There is no dispute that that history is accurate and it is repeated in several histories including Mrs Barrow’s statement. Similarly, there is no dispute that Mrs Barrow’s altered spinal posture has resulted from her back injury and the extensive surgery she has undergone because of it. Nor is it contested that Mrs Barrow has neck pain radiating into her shoulders. The issue is whether the neck pain has resulted from the back injury and surgery.
In deciding issues of causation the Commission is to apply the principles discussed in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 where Kirby P (as he then was) said at 463-4:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
In applying a “commonsense evaluation of the causal chain” it is necessary to consider all of the evidence, expert and non-expert. Mrs Barrow’s history is clear: walking around in a stooped position because of her back problems put a lot more weight on her neck and caused pain in her neck and into both arms. Dr Mahony’s evidence is brief but also clear: Mrs Barrow has suffered a cervical strain and it is “consistent” that this strain is “associated with” her altered spinal posture related to her low back condition. The process by which the doctor has reached his conclusion has been explained –the back injury caused the altered posture and the altered posture caused a neck strain – and the history on which it is based is undisputed. This is to be contrasted to the evidence in Edmonds where Dr Rivett had no history of the relevant activity said to have caused the further disabilities and he was silent as to whether Mrs Edmonds’ belief as to the cause of her problem was a “valid proposition”.
The Respondent Employer relies on Dr Bosanquet’s report. The principles in Makita are equally applicable to employers’ medical reports as they are to workers’ medical reports. Dr Bosanquet noted on examination that Mrs Barrow’s spine was flexed and she was unable to stand erect, but she had a full range of movement of her shoulders and her cervical spine. He took no history of Mrs Barrow developing neck pain as a result of her altered posture and, as a consequence, did not direct his report to that critical issue but merely concluded (on page four) that she has no permanent impairment of her neck or permanent loss of use of either arm at or above the elbow. He did not agree with Dr Mahony that Mrs Barrow had sustained an injury to her neck and arms as a result of her back injury. Whether he based this conclusion on his view that Mrs Barrow has no permanent impairment of her neck or on a view that there is no connection between the altered posture and neck symptoms is not explained. He did not deal with the issue of causation because he did not think there was anything wrong with Mrs Barrow’s neck or shoulders. His report is therefore of limited weight.
It follows that Dr Mahony provided appropriate expert evidence in support of Mrs Barrow’s claim and the Arbitrator erred in rejecting that evidence in circumstances where her history was not disputed. It also follows that I reject the Respondent Employer’s submissions on appeal. This case does not involve the Arbitrator exercising his discretion to accept some evidence and reject other evidence. It involves the application of incorrect legal principles to the assessment of expert evidence.
The Arbitrator’s reference to the lack of radiological evidence and the lack of investigation of other possible causes was also, in the circumstances of this case, an error. It was not necessary for Dr Mahony to investigate other possible causes of Mrs Barrow’s neck pain. Dr Mahony gave his opinion as to the cause of Mrs Barrow’s neck symptoms and radiological investigations were unlikely to add anything to that view, though they would be helpful in determining the nature and extent of the condition. Dr Mahony’s opinion, together with Mrs Barrow’s history, was sufficient to discharge the onus of proof Mrs Barrow carried. If the Respondent Employer wished to call evidence that Mrs Barrow’s neck problem was due to some other cause, it was open to it to call evidence to that effect.
OTHER MATTERS
A further issue remains outstanding. In view of the Arbitrator’s finding that Mrs Barrow suffered no injury to her neck or arms, he did not consider the question of whether that claim had been duly made in accordance with the provisions of the 1998 Act. The Respondent Employer’s argument that the claim for lump sum compensation in respect of the neck and arms has not been properly made has no substance. The Respondent Employer pressed the same argument in respect of the claim for loss of use of sexual organs. The Arbitrator correctly rejected that argument at paragraph 32 of his Reasons and his conclusion on that issue has not been challenged on appeal. The injury to the neck is not a new injury but has resulted from the back injury. There is no issue that the back injury was duly notified as required by the legislation. Therefore, subject to the need to provide proper particulars of the claim (which have been provided) Mrs Barrow is not barred from pursuing her claim for lump sum compensation resulting from her neck condition. The assessment of her impairment and/or losses will require an assessment by an Approved Medical Specialist providing an assessment under the Table of Disabilities.
DECISION
Paragraph three of the Arbitrator’s amended determination of 6 November 2007 and subparagraph three of paragraph 56 of the Arbitrator’s Amended Statement of Reasons for Decision are revoked and the following determinations made:
“3.That the application for lump sum compensation under section 66 of Workers Compensation Act 1987 with respect to permanent impairment of the Applicant worker’s neck and permanent loss of efficient use of her right arm at or above the elbow and permanent loss of efficient use of her left arm at or above the elbow is remitted to the Registrar for referral to an Approved Medical Specialist for assessment under the Table of Disabilities for an injury received before 1 January 2002.”
COSTS
Mr McCabe’s submissions on appeal were in general unhelpful and, in several respects, misguided. They did not properly or precisely enumerate the grounds of appeal as required in Form 9 and, as a result, the review took longer than was necessary. They included references to material that was irrelevant and can only be described as unnecessary and inappropriate padding. It is therefore appropriate that I assess the costs payable on appeal. Under Item 1 of Table 4 of Schedule 6 of the Workers Compensation Commission Rules 2006 I certify the Appellant Worker’s costs on appeal to be $550.00, plus GST.
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal, certified at $550.00 plus GST.
Bill Roche
Deputy President
17 March 2008
I NING DONG 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
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