Bartter Enterprises Pty Ltd v Haworth
[2006] NSWWCCPD 62
•19 April 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Bartter Enterprises Pty Ltd v Haworth [2006] NSWWCCPD 62
APPELLANT: Bartter Enterprises Pty Ltd
RESPONDENT: Alwyn Haworth
INSURER:GIO Workers Compensation (NSW) Ltd
FILE NUMBER: WCC5008-05
DATE OF ARBITRATOR’S DECISION: 5 August 2005
DATE OF APPEAL DECISION: 19 April 2006
SUBJECT MATTER OF DECISION: Injury; aggravation of disease; Section 16 Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President William Roche
HEARING:On the papers
REPRESENTATION: Appellant: Sparke Helmore
Respondent: Stacks Goudkamp
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 5 August 2005 is confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 1 September 2005 Bartter Enterprises Pty Ltd (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 5 August 2005.
The Respondent to the Appeal is Alwyn Haworth (‘the Worker’).
The Worker is currently 55 years old having been born on 23 October 1950. He started work for the Appellant as an engineer’s labourer in March 1993. In February 1994 he was transferred to the transport division and became a full time delivery driver in September 2001.
Shortly before Christmas 2001 he began to feel pain in both his legs. Because of his continuing leg pain he saw his local general practitioner in January 2002. No reports or notes from this doctor were before the Arbitrator but no point is taken about there absence.
As a result of his leg symptoms the Worker was referred for specialist treatment. Before that treatment was concluded the Worker lacerated his right shin at work on 22 March 2002 when he slipped on the floor of his truck and struck the corner of a pallet. This incident set in train a series of events that resulted in the Worker having a partial amputation of his right foot on 25 October 2002.
The Worker's claim for compensation was initially accepted but ultimately declined on the basis of medical evidence from Professor Mitchell in his report of 16 December 2004. The Worker’s subsequent claim for compensation came on for hearing before an Arbitrator on 11 July 2005. A Statement of Reasons for Decision (‘Reasons’) being prepared in August 2005.
THE DECISION UNDER REVIEW
The Arbitrator found that the Worker suffered an injury under section 4(b)(ii) of the Workers Compensation Act 1987 (‘the 1987 Act’) and that employment was a substantial contributing factor to that injury. The basis of the finding was that the Arbitrator was satisfied that the “chain of causation in respect of the partial amputation of the Applicant’s right foot begin with the work injury of 22 March 2002” (Reasons paragraph 24).
The Arbitrator made an award in favour of the Worker under section 37 of the 1987 Act from 28 December 2002 to date and continuing. He also referred the matter to an Approved Medical Specialist for assessment of the Worker’s degree of whole person impairment.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
· finding injury in favour of the Worker and consequently finding the Appellant liable to pay compensation after June 2002;
· failing to apply, or properly apply, the provisions of section 9A of the 1987 Act, and
· failing to adequately address the issues raised by Professor Mitchell.
The Arbitrator's findings on incapacity and dependency are not challenged.
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission 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.
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 appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The quantum involved in the appeal exceeds the thresholds set out in section 352(2)(a) and (b) and I grant leave to appeal.
FRESH EVIDENCE
No party seeks to adduce fresh evidence on the appeal.
EVIDENCE AND SUBMISSIONS
In about December 2001 the Worker developed pain in his legs which he attributed to standing on concrete at work. In January 2002 he noticed swelling in his feet and ankles and he attended on his local general practitioner who referred him to Dr Hayes, general surgeon.
The Worker saw Dr Hayes on 5 March 2002 who recorded a history of “bilateral calf claudication which came on at about 200 meters”. Tests were arranged including an aortogram which indicated “bilateral superficial femoral artery occlusions”. The left (uninjured side) showed a long occlusion and the right a short occlusion. It is common ground that the Worker had peripheral vascular disease which was symptomatic before 22 March 2002.
Early on the morning of 22 March 2002 the Worker sustained a v-shaped laceration to his right shin when he slipped on the floor of a truck he was unloading in the course of his work for the Appellant. The incident was reported and the Worker attended the Griffith Base Hospital where the wound was sutured on both sides and he was given a certificate to be off work for two days.
The Worker again attended at the Hospital on Monday 26 March 2002 and was advised to see his general practitioner whom I assume he saw later that day. By that time the Worker's leg was “swollen, the stitches were pulling and the wound had become infected” (Worker’s statement 13 April 2004 paragraph 25).
The Worker again saw his general practitioner on 28 March 2002 for the sutures to be removed. He was told that the “wound was very red and swollen and if we were not careful, an ulcer would form at the wound site” (Worker’s statement 13 April 2004 paragraph 27).
On 9 April 2002 the Worker again attended on Dr Hayes. The doctor described the leg as “pretty ugly” and referred the Worker to Dr Gamble, vascular and general surgeon, who saw him on 11 April 2002.
The Worker was admitted as an emergency for a right sided femoral angioplasty. On review on 7 May 2002 Dr Gamble noted he had evidence of cholesterol embolisation in his forefoot involving his right great toe. The doctor suspected the Worker had an “embolic event” at the time of the angioplasty.
At review on 21 May 2002 the ulcer was slowly healing.
At review on 20 June 2002 the Worker has bilateral intermittent calf claudication at 50 yards, though the ulcer was healing.
On 9 July 2002 the Worker's right leg again became swollen while he was performing light duties for the Appellant. He was put off work by his general practitioner until 10 August 2002.
On 22 August 2002 the Worker was examined by Professor Hall on behalf of the Appellant's insurer. No report was tendered from Professor Hall. At that time his shin was still red and swollen.
By September 2002 the Worker's wound was “almost closed over” but the right shin was still very sore (see Worker's statement 13 April 2004 paragraph 59).
At review on 18 September 2002 the Worker had been experiencing severe rest pain for two weeks and on examination Dr Gamble noted the development of gangrene of the Worker’s second and third toes. An angiogram performed on 18 September showed further occlusions which were “longer and more extensive” than previously seen. There was also noted to be an occlusion of the anterior tibial artery. Several bouts of surgery followed culminating in the partial amputation of the Worker's right foot.
The Appellant's written submissions state at paragraph six that the Arbitrator failed to “apply a test of proving the issue of causation between the trauma and the alleged incapacity”. They go on to state that the Worker’s medical case has failed to identify how the incident of 22 March 2002 caused an exacerbation of the underlying disease.
I think the point being made by the Appellant is the point explained by Justice Heydon in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 where his Honour said at 743-744:
“...so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight.”
Justice Hayden quotes from Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 where Lord President Cooper said:
“... 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.”
Makita was considered by the Court of Appeal in Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 where McColl JA held at [83]:
“This evidentiary lacuna was particularly significant in the case of the February from a couch. While the appellant conceded that the frank injury occurred in the course of the respondent’s employment, it also drew attention to the fact that the primary judge found the injury was occasioned during a period of rest, meaning that the respondent was not engaged in an employment task at the time. The absence of any expert opinion explaining how the respondent’s employment substantially contributed to an injury which occurred during a period of rest, could not be cured by recourse to the primary judge’s knowledge as a member of a specialised tribunal.”
There are a number of significant differences between Hevi Lift and the present case:
·In Hevi Lift one of the disputed reports was from a qualified doctor who did not state any basis that would link the alleged injury with work. In the present case Dr Gamble is the Worker’s treating specialist who was intimately familiar with the Worker’s medical condition and treatment, and the work accident history.
·In Hevi Lift the doctors’ failed to give any explanation about how an injury at home during a rest period could be connected with work. In the present case the relevant incident occurred at work.
·In Hevi Lift Dr Khoo (the treating specialist) merely asserted that it was “possible his work could have contributed to his condition”. In the present case Dr Gamble had a full and detailed history of the Worker’s injury and its aftermath including the exact treatment provided to the Worker and why that treatment was required. Dr Gamble’s opinion on causation was not an expression of a possibility but was stated as a certainty about which the doctor had “no doubt”.
Dr Gamble’s opinion is not a bare statement of a conclusion without more. He saw the Worker on 11 April 2002 on referral from Dr Hayes. The referral letter stated that the Worker had “bilateral superficial femoral artery occlusions in his legs with cellulitis of his right leg following an accident”. There is no dispute that the accident concerned was the work accident of 22 March. Dr Gamble confirms that his consultation with the Worker on 11 April 2002 was “directly referable to the incident at his work place on 22 March 2002”. He also notes that the work injury resulted in a “traumatic ulcer to the anterior tibial boarder which had not healed and was very painful”.
Dr Gamble concluded that the Worker had “pre existing vascular disease which the work injury has significantly exacerbated precipitating his arterial surgery, subsequent transmetatarsal amputation of his right foot” (report 14 July 2004 page four). The above history and conclusion from the treating vascular surgeon accepts a direct link between the Worker's injury, the need for treatment and the loss flowing from that treatment.
The doctor then states in the next paragraph of the same report that he “certainly relate[s] his [the Worker's] subsequent disability, surgery and incapacity to work to the incident at work dated 22 March 2002” (report 14 July 2004 page four)
The doctor adds that “there is no doubt that the injury has aggravated the patient’s pre existing peripheral vascular disease” (report 14 July 2004 page four).
Against Dr Gamble’s opinion the Appellant relies on the report of Professor Mitchell of 16 December 2004. The Professor notes that triangular lacerations such as the one sustained by the Worker “are better only sutured on one side, as suturing both sides creates tension with gangrene at the apex of the triangle and can lead to failure to heal” (report 16 December 2004 at page four). The Worker's laceration had been sutured on both sides.
The Professor notes that as at 13 March 2002 (the date of the first aortogram) the Worker “only had bilateral ischaemic claudication (pain in the calves making in necessary for him to stop walking and wait for the pain to subside before continuing)” (report 16 December 2004 at page three).
He accepts that “workers compensation was indicated up to the point where the laceration began to heal” in about June 2002. He does not indicate if that acceptance is based on an aggravation of a disease or on the basis of an injury. Nevertheless, he then states that the subsequent course of the worker's “surgical saga was due to the natural progression of the degenerative arteriosclerotic changes in the distal circulation and the thrombosis of the angioplastic dilated segment of the superficial artery leading eventually to the series of procedures Dr Gamble carried out” (report 16 December page four).
The Arbitrator preferred the evidence of Dr Gamble because Dr Gamble was the treating surgeon specializing in vascular diseases (Reasons paragraph 24) and he was “unequivocal in attributing the amputation to the exacerbation of the Applicant’s vascular disease caused by the work injury” (Reasons paragraph 24).
DISCUSSION AND FINDINGS
In respect of section 9A the Appellant argues that the Arbitrator did not provide an “analysis of the issues” as required by the 1987 Act. The submissions then deal with whether the Worker would have suffered the same or a similar injury in any event (section 9A(2)(d) because of the Worker’s state of health before the injury (section 9A(2)(e) or because of the Worker’s lifestyle outside the workplace (section 9A(2)(f)). In my opinion this argument fails to appreciate that the section talks about “employment being a substantial contributing factor to the injury”, not the incapacity (see Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725 at 733). In the present case the injury was found to be an aggravation or exacerbation of a disease under section 4(b)(ii) of the 1987 Act. The Worker must show that his employment was a substantial contributing factor to the aggravation, not to the disease process itself (see Cant v Catholic Schools Office (2000) 20 NSWCCR 88). In King v Commissioner of Police (2004) 2 DDCR 416 Neilson J concluded that the employment must be a substantial contributing factor to the event giving rise to the aggravation or exacerbation of the disease rather than the pathology of the underlying disease itself. Dr Gamble provided ample evidence that there had been such an aggravation or exacerbation and it was undisputed that the “event” (the laceration) which gave rise to the aggravation resulted directly from an incident which occurred at work.
If I am wrong in what I have said in paragraph 43 above, I believe Dr Gamble’s evidence adequately deals with the section 9A(2)(d), (e) and (f) issues raised by the Appellant in its submissions. The doctor’s opinion was that “in 10%-20% of people the disease would have progressed such that surgery or limb threatening ischaemia could have developed” (report 14 July 2004 page four). For Mr Haworth the doctor felt it was “highly likely that he would have had a normal working life with perhaps some modification depending on his walking distance during his lifetime”. My reading of this evidence is that had the Worker not suffered his work injury it was “highly likely” he would have had a normal working life and would not have developed the serious complications which followed the laceration and subsequent complications. In other words the Arbitrator's acceptance of Dr Gamble’s opinion on causation also deals with the section 9A issue as they are in essence the same point.
Professor Mitchell says it’s not work related because the Worker would have developed the problem in any event because what happened was the natural progression of the condition. That opinion was rejected by the Arbitrator and for the reasons set out above I agree with his conclusion.
Dr Hayes touches on the section 9A(2)(d), (e) and (f) issues by saying that the Worker would have required treatment for his vascular disease “at some stage though once he stopped smoking and lost weight he may have improved slightly”. This falls well short of saying that the Worker would probably have developed his condition in any event even if he had not been injured at work. Dr Hayes goes on to say that with apparently normal coronary and carotid arteries, the Worker could have continued his current duties “as long a he didn’t injure his legs in any way”.
The Appellant relies on Sydney City Council v Furner (1991) 7 NSWCCR 210 to support its argument. In that case the worker died of lung cancer. The claim for compensation by his widow was successful in the Compensation Court but failed in the Court of Appeal. The evidence was that the worker had been exposed to creosote in the course of his employment and that that substance can cause cancer in humans. In addition, the worker was a heavy smoker. The evidence was that the major cause of lung cancer was smoking but exposure to creosote could not be excluded as a cause. The Court of Appeal held that the mere fact that a particular cause could not be excluded does not establish that it is the cause on the balance of probabilities.
I do not believe that Furner helps the Appellant in the present case. Dr Gamble goes well beyond saying ‘I cannot exclude the work injury as a possible cause of the worker's problems’. He has expressed his opinion in strong and unequivocal language. As I read his report he is very definitely of the view that the work incident caused an exacerbation of the pre existing peripheral vascular disease which precipitated the need for surgery.
I find the authority of Gilbarco v Salopek (1990) 6 NSWCCR 260 of more assistance. In that case the worker developed blisters on his right foot from wearing protective work boots supplied by his employer. He had no prior problems with his feet. The ulcers developed into an infection. Because of an underlying hyperlipidemia and poor circulation, the healing process was delayed. Eventually the ulcers did heal and the infection was eliminated but the worker was left with residual scarring and damage to his foot which meant he was unable to wear protective footwear and was only fit for duties not involving standing or walking.
The respondent argued that any ongoing effect of the injury was due to the vascular disorder and the hyperlipidemia. The Senior Commissioner found in favour of the applicant and on review Judge Burke upheld that decision. His Honour held at 266 that if the continuing symptoms had there origin in the disease process then the process had “become ‘more grave, more grievous or more serious in its effects upon the patient’ to borrow the words of Windeyer J in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 639”.
So it is in the present case that the symptoms of the Worker's vascular disease have been “significantly exacerbated” (Dr Gamble 14 July 2004 page four) by his work incident. In that sense they have become “more grave, more grievous or more serious” in there effect on the Worker.
On the issue of exacerbation of a disease under section 4(b)(ii) the authority of Federal Broom is instructive. In that case Justice Kitto (at 635) noted the words of Justice Moffitt in the Court of Appeal:
“Moffitt J. was right, I think, in saying: ‘There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism’.”
In the present case the Worker's “experience of the disease” was “increased or intensified” as a result of the laceration sustained at work. He experienced:
· an increase in pain in his right leg;
· reduced ability to walk;
· a serious infection;
· a chronic ulcer which proved difficult to treat;
· swelling in the right leg, and
· cellulitis in the right leg.
In these circumstances I believe the Arbitrator was correct in accepting the evidence of Dr Gamble in preference to Professor Mitchell.
I also find support for the Arbitrator's decision in the fact that the Worker's initial investigations showed artery occlusions in both legs but the Worker has only experienced disabling symptoms in the injured right leg. That fact makes the conclusions of Dr Gamble even more compelling. What is required is a commonsense evaluation of the casual chain with due regard to the statutory formula by asking the question whether the incapacity has “resulted from” the work event in question (see Kooragang Cement Pty Ltd v Bates (1994) 10 NSWCCR 796). I believe the Arbitrator has applied that approach in the present case.
In my opinion there is an alternative ground on which to uphold the Arbitrator's decision. I accept that the Worker’s counsel presented the case as a section 4(b)(ii) and section 16 injury, that is, as an aggravation or exacerbation. However, in Rail Services Australia v Dimovski [2004] NSWCA 267 Justice Hodgson held that:
“Section 16 applies only if the injury ‘consists in’ the aggravation etc of a disease. If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstance that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury "consists in" the aggravation of a disease. One strange result of the contrary view would be that a frank injury relied on and proved would, if it happened to aggravate a disease, and if incapacity did not commence immediately, be deemed under s 16(1)(a) to have happened at some time other than when it in fact happened.”
In the present case the ‘event’ was a laceration to the leg. That event was an injury that went on to aggravate a pre existing peripheral vascular disease. On the authority of Dimovski the claim could well have been argued as a frank injury under section 4(a) of the 1987 Act. In my opinion one reaches the same result as reached using section 4(b)(ii). Provided there is a direct chain of causation between the event (the laceration) and the subsequent incapacitating condition (the incapacitating vascular complications) so that the latter has resulted from the former, the Worker is entitled to succeed (see Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725 at 731). The Appellant takes issue on whether there has been a direct chain of causation and relies on Professor Mitchell to establish that the chain has been broken. In my opinion an analysis of the medical evidence leads to a different conclusion.
I am satisfied that the Arbitrator’s decision is not affected by any error of law, fact or discretion.
DECISION
The decision of the Arbitrator dated 5 August 2005 is confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of this appeal.
William Roche
Acting Deputy President
19 April 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF WILLIAM ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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