Beaton v Pinners Transport Pty Limited - [2010] NSWWCCPD 57

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Beaton v Pinners Transport Pty Limited [2010] NSWWCCPD 57
APPELLANT:		Harold Beaton
FIRST RESPONDENT:		Pinners Transport Pty Limited
SECOND RESPONDENT:		Workers Compensation Nominal Insurer
INSURER:		Workers Compensation Nominal Insurer
FILE NUMBER:		A2-1000/09
ARBITRATOR:	Mr J Ireland
DATE OF ARBITRATOR’S DECISION:		14 January 2010
DATE OF APPEAL DECISION:		26 May 2010
SUBJECT MATTER OF DECISION:		Weight of evidence; onus of proof
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Adams Leyland Lawyers
First Respondent:	No appearance
Second Respondent:	Sparke Helmore
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 14 January 2010 is revoked and the matter is remitted to a different Arbitrator for the applicant worker’s entitlements to compensation to be re-determined in accordance with the reasons in this decision and to make the referral to the Registrar for referral to an Approved Medical Specialist. The second respondent is to pay the worker’s costs of the first arbitration hearing. The second respondent is to pay the appellant’s costs of the appeal.

BACKGROUND TO THE APPEAL

The appellant worker, Mr Beaton, was employed by the first respondent, Pinners Transport Pty Limited (‘Pinners’) as a storeman. However, for two weeks prior to the accident the subject of these proceedings, he had been working as a truck driver for Pinners due to a temporary staff shortage.

On 15 June 2001, Mr Beaton was driving a truck between Shepparton in Victoria and Sydney in NSW when he was involved in an accident. Mr Beaton claims that he dozed off momentarily, as a result of which the vehicle he was driving collided heavily with the rear of a truck ahead of him.

About two months after the accident, the first respondent, Pinners, ceased trading and has taken no part in these proceedings.

There is no dispute that Pinners held a policy of insurance under the Victorian Accident Compensation Act 1985, but was uninsured in NSW.

The worker seeks an order that the nominal insurer pay any compensation and costs awarded against the employer from the Workers Compensation Insurance Fund established under section 154E of the Workers Compensation Act 1987 (‘the 1987 Act’).

The second respondent, the nominal insurer, has appeared and defended these proceedings.

Mr Beaton claims weekly compensation from 15 June 2001 to date and continuing, and lump sum compensation pursuant to section 66 in respect of alleged impairment to his back, and compensation under section 67 for pain and suffering.

Mr Beaton made a claim on Pinners through its Victorian insurer, QBE Workers Compensation (Victoria) Pty Limited (‘QBE’), and received weekly payments for various periods and medical expenses, which totalled $61,001.42. QBE declined liability for an L5/S1 spinal fusion on the basis that the need for such surgery was not causally related to the motor vehicle accident.

On 15 October 2007, Mr Beaton made a claim on the nominal insurer, which was denied. On 11 February 2009, Mr Beaton filed an Application to Resolve a Dispute (‘the Application’) in the Commission.

The parties attended a hearing before an Arbitrator on 12 May 2009, where it was agreed that the only issue for determination at that time was the question of the jurisdiction of the Commission to hear the dispute. The nominal insurer argued that, although Mr Beaton’s accident occurred in NSW, that of itself was insufficient to attract the jurisdiction in NSW in circumstances where the employment contract was negotiated in Victoria, both parties were resident there, and Mr Beaton had already received payments from Pinners’s Victorian insurer, QBE.

In a reserved decision delivered on 28 May 2009, the Arbitrator found that the Commission had jurisdiction to hear and determine the matter.

The nominal insurer unsuccessfully appealed the Arbitrator’s decision. In a reserved decision WorkCover New South Wales v Beaton & Anor [2009] NSWWCCPD 118 dated 23 September 2009, Acting Deputy President Moore determined the question in favour of Mr Beaton, and confirmed the Arbitrator’s decision.

The matter was then listed for a conciliation and arbitration hearing before Arbitrator Ireland on 10 November 2009. Notwithstanding the range of matters notified in the respondent’s section 74 notice, the parties agreed at the hearing that the matters that remained in dispute for determination by the Arbitrator were: first, whether the worker sustained injuries to his neck and back as a result of the motor vehicle accident on 15 June 2001; and, second, whether the applicant was incapacitated as a consequence of those injuries. There was no oral evidence at the hearing. Counsel for the nominal insurer made detailed submissions. As the hearing ran substantially over the allocated time, the matter was adjourned to enable written submissions to be filed by Mr Beaton and for further submissions in reply by the nominal insurer.

In a reserved decision dated 14 January 2010, the Arbitrator determined that, whilst Mr Beaton had suffered injuries to his neck and back in the accident on 15 June 2001, he was not satisfied that they had resulted in any permanent impairment to the neck or back. He found that Mr Beaton had resumed normal duties and, by the time his employment with Pinners ended in September 2001, he had fully recovered from the effects of his injuries. Consequently, the Arbitrator entered an award for the respondents in respect of the claim for weekly compensation and medical expenses. He declined to refer the matter to an Approved Medical Specialist (‘AMS’) for assessment of permanent impairment, and entered an award for the respondents in respect of the claims under section 66 and section 67. It is from that decision that Mr Beaton now seeks leave to appeal.

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’).

It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.

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.

ON THE PAPERS REVIEW

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.

THE EVIDENCE

Mr Beaton’s evidence is set out in his statement of 2 May 2006 and a brief supplementary statement dated 13 February 2008.

Mr Beaton is 48 years of age. He attended school to year nine. Following completion of his formal education, he started work in 1976 loading fruit containers, which he did for the ensuing 20 years. From 1996, he has been employed substantially in the heavy transport industry.

On 15 June 2001, he was driving on the Hume Highway towards Sydney. At about 3.00 am, Mr Beaton became aware that the truck that he was driving was gaining quickly on the truck in front of him. He said, “I came to within approximately 100 yards behind it and saw its tail lights. The next thing I knew, I was right on top of it. I must have dozed off momentarily.” A heavy collision occurred between the two trucks, as a result of which the cabin section of the truck Mr Beaton was driving became dislodged from the chassis and travelled some 50 metres from the point of impact before coming to rest. Mr Beaton told police that he “blacked out” before the impact, and had no recollection of it.

Mr Beaton was taken to Wagga Wagga Base Hospital, where he was treated as an outpatient. The triage notes at Wagga Wagga Base Hospital indicate complaints of pain on the left side of the neck and lacerations to the lower back.

About a week after the accident, Mr Beaton was cleared to return to work by his local general practitioner, Dr Tavcar. He returned to his normal duties as a storeman, working normal hours. He worked as a forklift driver and undertook warehouse duties. This, he says, was his substantive position. He did not regard the work as light work, and says that he found it difficult to cope, “but struggled along as best I could”.

About four months after the accident, that is, in approximately September or October 2001, Mr Beaton ceased employment with Pinners when the company went into liquidation.
Within a week of ceasing with Pinners, Mr Beaton obtained employment with ID Transport as a truck driver. He worked there until about April 2002.

Mr Beaton claimed that, after returning to work at Pinners, he started to notice back pain after a couple of days. He sought treatment from Dr Pedrotti (in the same clinic as Dr Tavcar). Subsequently, he was referred to Dr Brian Barrett, an orthopaedic surgeon, for treatment of his back, and to Dr Dohrmann, a neurosurgeon, for treatment of his alleged neck injury.

Mr Beaton also received treatment for other injuries which are not alleged to be the cause of any incapacity.

Mr Beaton claims that, after six months of working with ID Transport, he resigned because of unbearable back pain.

Although there is no evidence from Mr Beaton regarding his post-accident employment history after leaving ID Transport, it is clear from the wages schedule filed by his solicitor, and from the documents admitted into evidence pursuant to an Application to Admit Late Documents dated 24 November 2009, that he has had a number of subsequent employers and has engaged in regular truck driving.
The precise course of the worker’s post-accident employment is far from clear. He said in his statement of 2 May 2006 that, after the first respondent ceased trading, he obtained employment in September 2001 with ID Transport, working as a truck driver on a full-time basis. However, after six months, the pain in his back was unbearable, and he was forced to stop work. That would suggest that he has not worked since about March 2002. In a brief statement of 12 May 2009, he confirmed cessation of work within six months of commencing work with ID Transport. It is evident, however, that Mr Beaton has worked since that time, but the nature and extent of the work could only be gleaned from the histories contained in the medical reports and other records.
The worker’s claim form under the Accident Compensation Act 1985 indicated his pre-injury ordinary weekly gross earnings at $680.00, exclusive of overtime and allowances. The form indicates that he regularly worked eight hours of overtime for an additional $204.00, bringing his gross earnings up to $884.00. The employer’s claim form, dated 19 June 2001, is consistent with those earnings.

Medical evidence

The notes from the NSW Ambulance Service record that the worker’s chief complaint at the scene of the accident was left-sided neck pain. The notes also record minor lacerations to the small of the back.

After the accident, Mr Beaton was transferred by ambulance to Wagga Wagga Base Hospital. He was not admitted. Complaints included left-sided neck pain and laceration to the lower back. Consistent with the police report, the hospital notes confirm that Mr Beaton was able to walk around after the accident. X-rays of the cervical spine showed degenerative changes at the C4/5 level and the C5/6 level, and the possibility of canal stenosis. The rest of the disc spaces were preserved, and no fracture was demonstrated. The cervical collar was removed. The wounds to the lower back were treated and dressed, and Mr Beaton was discharged.

After the accident, Mr Beaton came under the care of his local general practitioner, Dr John Pedrotti. Dr Pedrotti provided reports in January, February and August 2002 to QBE in Victoria. Those reports referred to Mr Beaton’s depressive illness after the accident, and the consequence of his head injury. Mr Beaton’s heavy vehicle licence was rescinded, due to an alleged post-concussion syndrome.

In December 2002, Dr Pedrotti referred Mr Beaton to Dr Brian Barrett, an orthopaedic surgeon, for treatment of complaints of lower back pain. In a referral letter, Dr Pedrotti made reference to having seen Mr Beaton within a couple of weeks after the accident, when he treated lacerations and abrasions over his lower back, more so on the right than the left, where he treated a large, liquefied, central haematoma which required aspiration a number of times. He stated that Mr Beaton had recently gone back to truck driving. He commented:

“He has recently gone back to truck driving and this activity (or lack of it) is associated with increased lower back pain and stiffness.”

In May 2003, Dr Pedrotti wrote to QBE reporting on Mr Beaton’s depressive illness, headaches, memory loss and poor concentration. He also commented:

“The other feature of his illness is low back pain which was not immediately obvious in June 2001, but has developed since. He now suffers from low back pain and burning feeling in the right leg. This is not debilitating and does not interfere with his ability to work.”

By August 2003, Dr Pedrotti reported on Mr Beaton’s complaints of pain and stiffness in the cervical spine and paraesthesia in the left arm. He recommended an MRI of the cervical spine.

On 17 February 2004, Dr Pedrotti again reported to QBE. He noted continuing complaints of back pain, which had deteriorated significantly over the previous 12 months. Mr Beaton was complaining of constant severe lower back pain and radiating pain down the right leg, sufficient to prevent him from working. He also complained of neck pain and pain in the left shoulder. Dr Pedrotti confirmed the existence of degenerative disc disease and some foraminal narrowing, narrowing of the spinal canal, and flattening of the spinal cord. He concluded that Mr Beaton suffered both cervical and lumbar disc injuries. He consulted the records from Wagga Wagga Base Hospital, but stated that he found them “unhelpful”. Dr Pedrotti stated that the disc injuries had not become obvious or significant until some period after the accident. He thought that this was not unreasonable, given that Mr Beaton’s predominant symptoms were the head injury and multiple to rather severe soft tissue injuries which would have dominated his symptoms at that time. He said, “The back pain and right sciatica was not obvious to me until February 2002, and his neck and shoulder and arm symptoms were not reported until July 2003”.
In his report of 18 April 2006, Dr Pedrotti reported:
“Mr Beaton is a 44-year-old truck driver who was injured in an accident in June 2001. In this accident, he suffered injuries to his lumbar and cervical spine. Subsequent investigations, including CT scans and MRIs, have shown disc damage in both areas. As a result of a head injury suffered in this accident, he has also developed a post-concussion syndrome, which manifests as headache, lethargy, stuttering speech and poor concentration. Furthermore, as a result of his injuries, he has developed an ongoing depressive illness. He is presently not fit for any gainful employment, and remains so for the foreseeable future.”
Finally, in a report of 11 April 2007, Dr Pedrotti added:
“As a result of his injuries, he has developed an ongoing depressive illness and all of his present incapacities are direct results of the accident. He has no present capacity for employment, his future prognosis is reasonable.”
Mr Beaton was referred by Dr Pedrotti to Dr David Prentice, a neurologist. He first saw Mr Beaton on 1 September 2001. Dr Prentice noted that, since the accident, the worker had problems with poor memory, concentration, headaches, back pains, general moodiness, increased sleepiness, and an increased stutter. He noted, on examination, soft tissue swelling in the right lumbosacral region “which had been subjected to an ultrasound and it was causing him some ongoing pain”. Dr Prentice diagnosed a typical post-concussion syndrome. He organised an MRI of the brain, which was basically normal. When reviewed in October 2001, the worker was complaining of headaches and depression. He was treated with Zoloft. By December, his nightmares had stopped and he was feeling less stressed, and he was referred back to his local practitioner.
Mr Beaton was referred back to Dr Prentice on 18 June 2002 for treatment of ongoing memory-related problems and depression. When reviewed on 17 May 2003, Dr Prentice noted continuing headaches and back pain. He continued to complain of ongoing headaches and depression.
Dr Prentice next reviewed Mr Beaton on 9 February 2004. He continued to have problems with headaches, memory lapses and moodiness. Dr Prentice noted that he had been referred to an orthopaedic surgeon and had submitted to an MRI of his cervical and lumbar spines. He noted that these showed some evidence of disease in both locations, with a cervical canal stenosis at C5/6 causing some flattening of the cord, but with no associated myelomalacia, and there was also bilateral 6/7 foraminal narrowing. Dr Prentice noted that Mr Beaton had also been referred to a neurosurgeon, Dr Dohrmann, regarding this. An MRI of the lumbar spine showed a disc bulge at L5/S1 with an annular disruption also at L4/5, as well as facet joint arthropathy at L4/5, L3/4 and L5/S1, but no nerve root compression was seen. He noted that Mr Beaton had also had a discogram, which showed significant disc disease, for which surgery was planned.
Dr Prentice said:
“With respect to Harold’s cervical spine, I thought it was dubious whether any surgery would improve his symptoms, particularly his headaches. I did not think he had any significant cord compression when reviewing the scans and there was [sic] no obvious clinical features of this either.”
Dr Prentice felt that Mr Beaton’s capacity for work was very low by reason of a combination of his physical and psychological problems. Dr Prentice saw Mr Beaton on three further occasions – on 6 July 2004, 26 August 2005 and 6 March 2006 – to prepare reports regarding his fitness to drive for VicRoads Medical Review Board. He noted that there had been no substantial improvement in his symptoms or his ability to function during that time.
Mr Beaton was referred to Dr Dohrmann, neurosurgeon, for a second opinion in relation to his neck complaints. Mr Beaton complained of neck pain radiating to both shoulders, but did not describe referred pain into the upper limbs. He reported intermittent paraesthesia in the right hand. In a report dated 27 March 2004, Dr Dohrmann noted:
“Mr Beaton explained that he had been badly shaken up by the accident, but was not aware of any specific injury at that time.
His general practitioner encouraged him to return to work as early as possible and indeed he did so, working until late 2003. He performed essentially normal duties during this time, continuing to drive from Victoria to Sydney and back repeatedly.
However, he stated that he was having difficulty coping in heavy traffic while in major cities, and was also having difficulty loading and unloading, because of back and neck symptoms. He conceded that the difficulty in heavy traffic was a stress phenomenon rather than a pain problem as such. He therefore ceased work approximately five months ago.”

Dr Dohrmann reviewed the MRI scan of the cervical spine performed in November 2003. He noted the MRI scan revealed obvious and significant disc lesions at C5/6 and C6/7. He felt that these changes may have been present but asymptomatic before the accident, having probably been exacerbated and rendered symptomatic as a result of the accident. He did not think there was any clear indication for surgery. He assessed that Mr Beaton was incapacitated for his pre-injury duties due to a combination of neck pain, back pain and a psychological reaction, including anxiety and depression. Even if Mr Beaton’s psychological state improved, he did not expect the worker to be able to engage in heavy physical work, or work that involved repeated bending, lifting or twisting motions of either the cervical or lumbar spine.
The radiological investigations may be summarised as follows:
CT scan lumbar spine of 27 February 2002: “Signs of mild degree of L4/5, L5/S1 lumbar spondylosis. No focal disc protrusion is seen.”
MRI lumbar spine of 22 May 2003: “Mild disc bulge at L5/S1 with a small focus of mild annular disruption and a very mild disc bulge at L4/5. Moderate L4/5 and mild L3/4 and L5/S1 facet joint arthropathy. No nerve root compression is seen.”
Lumbar discogram of 6 August 2003: “Anteriorly and posteriorly ruptured L5/S1 disc, with typical severe pain reproduction. Anteriorly ruptured L2/3, L3/4 and L4/5 discs, with no pain at any of these levels.”
MRI cervical spine of 17 November 2003: “1. Mid and lower cervical disc degenerative changes. 2. Mild canal compromise C5/6 with some cord flattening. 3. Bilateral C6 and C7 foraminal narrowing.”

Mr Beaton was examined by Dr Brian Barrett on 17 January 2003. Dr Barrett considered the worker was suffering from a significant disruption involving at least the lower two lumbar intervertebral discs, producing ongoing low back pain, and mainly right sciatica. He recommended an MRI of the lumbar spine.
Dr Barrett prepared a report to QBE on 14 March 2003. Mr Beaton gave a history of having been employed as an interstate truck driver and having worked in that capacity for more than 20 years prior to his accident on 15 June 2001. He gave a history of complaining of low back pain following the motor vehicle accident, but stated that he had returned to forklift driving with the same employer two days after the accident, and continued working full time. Mr Beaton told Dr Barrett that he returned to local truck driving two months after the injury, and continued to complain of low back pain, later returning to interstate truck driving, where he continued to complain of low back pain, aggravated by prolonged sitting for more than two hours, and requiring a stop and walk about to get relief. He said that he had managed to keep working throughout this period, but found that his symptoms were aggravated by lifting and pushing work. He denied any complaints of low back pain before the accident on 15 June 2001, or any earlier back injuries. Dr Barrett reported on his physical examination and the outcome of a CT scan of the lumbar spine performed on 27 February 2002, which revealed some mild lower lumbar disc bulging at L4/5 and L5/S1 lumbar levels. Dr Barrett concluded:
“Since this motor vehicle accident of 15 June 2001, Mr Beaton has consistently complained of low back pain and bilateral sciatica, and the nature of these persisting symptoms, his clinical orthopaedic and radiological examinations, all suggest a significant lower lumbar disc injury or injuries has occurred.”
In responding to specific questions (which are not in evidence), Dr Barrett said:
“1. The motor vehicle accident of 15 June 2001 produced significant injuries localised to his lumbar spinal region, in addition to his head injury. The post-concussion syndrome accompanying the head injury took precedence at the time, but this man has consistently complained of low back pain since the motor vehicle accident, a symptom that was not present prior to that date.

2.   The specific causes of Mr Beaton’s clinical condition appear to be ruptures involving the lower two lumbar intervertebral discs.
3.   This low back pain has been present since 15 June 2001 and its persistence beyond settling of his post-concussion syndrome requires further investigation.
4.   Any treatment plan depends upon specific diagnosis and I have requested an MRI examination of the lumbar spine to assist in the diagnostic process.”

On 30 May 2003, Dr Barrett reported on an MRI of the lumbar spine performed on Mr Beaton on 22 May 2003. He considered that Mr Beaton was suffering from a significant disruption involving the L5/S1 lumbar disc and, to a lesser extent, the L4/5 lumbar disc, and this was causing his ongoing back pain and disability.
On 6 August 2003, Mr Beaton underwent a lumbar discogram, which Dr Barrett reported on in his report of 22 August 2003. As a result of the MRI and discogram, Dr Barrett concluded that the L2/3, L3/4 and L4/5 discs were all ruptured anteriorly only and injection of these disc nuclei was quite pain-free at each level. The L5/S1 disc was ruptured seriously, both anteriorly and posteriorly, which, on injection of the disc, reproduced severe and typical pain at this one lower lumbar level only. He concluded that the discogram clearly revealed a painful and traumatic rupture at L5/S1 lumbar disc, symptoms of which continued since his motor vehicle accident of 15 June 2001. Commenting on a report of Dr David Macintosh, an orthopaedic surgeon retained by QBE, Dr Barrett disagreed with the opinion expressed by Dr Macintosh that Mr Beaton had physically recovered from soft tissue injuries to his lumbar spine.
On 18 August 2003, Mr Beaton was assessed by Dr Jacques Joubert, consultant neurologist, for QBE in Victoria. In the history he recorded, Dr Joubert noted, inter alia, that Mr Beaton was currently working as a truck driver travelling interstate two days at a time, on average, for approximately 10 hours per day, six days per week. He described chronic lumbar pain without radiation to the lower limbs. He described the pain as present day and night, being severe to moderate pain. He said that the pain is such in his lower back that he is unable to remain seated for more than two hours, and he has to cease driving to walk around. Dr Joubert noted details of his physical investigation and his reference to the radiological investigations, including x-rays, CT scan of the lumbar spine (27 February 2002) and the MRI scan of the lumbar spine (22 May 2003). Dr Joubert concluded that, on physical examination, although there was mild limitation of flexion of the lumbar spine, no other abnormality was detected. In his opinion, Mr Beaton had recovered from the effects of his injury on 15 June 2001, and was capable of working as a truck driver. He felt that there was no current incapacity relating to the accident in question that can be objectively ascertained. In his opinion, there was no permanent impairment, and he considered Mr Beaton fit to perform his pre-injury duties and assessed his prognosis as good. He did, however, note significant depression and suggested counselling.

Dr Barrett was asked by QBE to reconsider his opinion in light of the clinical notes from Wagga Wagga Base Hospital. After examining the information from the hospital, Dr Barrett confirmed his opinion that Mr Beaton sustained a painful and traumatic rupture at the L5/S1 lumbar disc in the accident on 15 June 2001. Dr Barrett foreshadowed a possible localised decompression and fusion operation at the level of the affected disc.
In a further report dated 11 February 2004, Dr Barrett restated his earlier opinions, adding that he believed Mr Beaton’s symptoms could be considerably improved by decompression and fusion surgery. However, he added that, because his other lumbar discs are not perfectly normal in all respects, although they are pain-free, he would need to return to only lighter forms of work in the future. He stated that he did not consider Mr Beaton fit for work “as he presented to me”, but stated that he believed Mr Beaton was continuing with light work. He recommended that he should only pursue light work and should not undertake work involving any prolonged stooping or heavy lifting.
Dr Barrett prepared a report dated 21 March 2006 addressed to the Accident Compensation Conciliation Service in Melbourne. The history and views previously expressed were consistent, but I note Dr Barrett added that he had not examined Mr Beaton since 9 September 2003, and had no information regarding his current capacity for a return to his pre-injury duties or any lighter work, but considered that the painful nature of the L5/S1 lumbar disc rupture would make any work, other than light and part-time work, difficult to continue with.
Dr Barrett’s opinion remained unchanged following a re-examination on 24 July 2006. In a report dated 26 July 2006 to the Registration and Licence Information Services, Victoria Roads, Dr Barrett said:
“My re-examination of Mr Beaton on 24 July 2006 was similar to that of 15 January 2003. He still retains low back pain radiating into both buttocks and groins, particularly troublesome after prolonged sitting, prolonged standing, prolonged walking, and his sleep remains disturbed. He has remained continuously off work since 2003 and is not able to return to even light work as he currently is.
As outlined above, I consider Mr Beaton is not physically able to manage a truck-driving occupation and, even following proposed operative treatment, he would be unwise to return to that type of work in the future.”
Mr Beaton was examined by Dr Simon Crow, a consulting neuropsychologist, on 13 September 2002. In his report of 24 September 2002, Dr Crow noted that, on presentation, evidence of his hands revealed considerable ingrained grease and dirt to his palms and the underneath of his nails, and some callousing to his palms. He indicated that he had been physically working up until the day before he was examined. Dr Crow reported on the history and various tests administered by him. He concluded that Mr Beaton showed evidence of some compromise in neuropsychological functioning, which he regarded as a secondary rather than as a direct effect of the injury. He did not consider that, as a result of the injury, Mr Beaton suffered any incapacity for employment.
Dr David Macintosh is a consultant orthopaedic surgeon retained by QBE. He provided a series of reports to QBE commencing with a report on 27 June 2003. After recording the history, physical findings and his assessment of the radiological investigations, he stated that Mr Beaton appeared to have been involved in a quite significant motor vehicle accident, and noted complaints of neck, back and shoulder pain, as well as headaches and depression, since that time. He noted a history of working on a full-time basis as an interstate truck driver, albeit with complaints of difficulty, particularly with sitting for extended periods of time. He thought that his physical signs and radiological signs were consistent with degenerative changes. He felt the major factor appeared to be depression, which was beyond his area of expertise. He assessed that Mr Beaton was presently fit for work on a full-time basis in his pre-injury employment. He did not believe that he suffered any permanent impairment with respect to the injuries sustained in the accident.
Dr Macintosh reviewed Mr Beaton again on 10 September 2003. Again, he assessed significant soft tissue injury to his lower back. He said, “It is my opinion that the effects of this accident have substantially resolved and Mr Beaton has returned to full-time work”. Notwithstanding the appellant’s submissions that Dr Macintosh did not have the benefit of access to the discogram of the lumbar spine undertaken on 6 August 2003, clearly he did. He makes specific reference in paragraph 3 of his report of 10 September 2003 to his consideration of the MRI scan and discogram, which confirmed, in his view, widespread degenerative changes in the lumbar spine. Specifically, he said:
“It is my opinion, which opinion appears to be supported by literature, that a lumbar discogram which produces pain at one level is not evidence that this is the sole cause of persisting pain, nor that the disc disruption is an acute one.”
He restated his view that there were significant non-physical symptoms evident. He strongly cautioned against any surgery, considering that it could make the worker’s condition worse. He felt that Mr Beaton would benefit from psychological support. He considered that there were other materially-contributing factors to his pain that were not directly related to the accident.
In his report of 4 February 2004, Dr Macintosh reviewed the admission notes from the Wagga Wagga Base Hospital. He noted that they confirmed abrasion to the elbow, abrasions to the right buttock, and a probability of a head injury. However, two treating doctors at that time did not detect any significant tenderness in the lumbar region and did not consider x-rays of the spine warranted. These findings, he opined, did not rule out soft tissue injury; indeed, he felt that Mr Beaton had suffered a soft tissue injury to the lumbar spine, but probably not a severe one. It remained Dr Macintosh’s view that Mr Beaton’s continuing symptoms were related essentially to an underlying degenerative condition, and he had substantially recovered from the effects of the motor vehicle accident of 15 June 2001.
Dr Macintosh saw Mr Beaton again on 7 May 2004. By then, he recorded that he had completely ceased work on 1 November 2003, as he was unable to “put up with any of the pains”. He stated that he was only able to drive a motor vehicle for one or two hours. He complained of constant low back pain, aggravated by sitting for more than 30 minutes. Dr Macintosh confirmed his earlier views, stating that he was still of the opinion that Mr Beaton was fit to return to his pre-accident employment. Whilst he accepted that Mr Beaton had suffered soft tissue injuries to his cervical and lumbar spines which were superimposed on degenerative changes, the effects of the motor vehicle accident of 15 June 2001 had resolved. Whilst he accepted that Mr Beaton may experience difficulty with sitting for extended periods of time, he did not regard this as related to the effects of the motor vehicle accident.
Mr Beaton’s solicitors referred him for an opinion to Dr Peter Isbister, an orthopaedic surgeon, in November 2006. Dr Isbister’s history makes no mention of the onset of back pain other than to note Mr Beaton complained of back pain when carrying objects. He noted pain moving down each hip, but no specific referred pain. After noting the history of symptoms and his assessment of the MRI investigations and discograms, Dr Isbister diagnosed lumbar spondylosis and cervical spondylosis. He accepted that, whilst there were no pre-existing symptoms, radiographically the pathology seemed to pre-exist. He opined that Mr Beaton had radiological evidence of pre-existing degenerative changes in the cervical and lumbar spine. However, he suffered significant injury to his lumbar spine and had ruptured the L5/S1 intervertebral disc. He also suffered a direct injury to his lower back, producing haematoma. In Dr Isbister’s view, the aggravation to the neck and the injury to the back are consistent with the injury described as occurring at work on 15 June 2001. His work was therefore a substantial contributing factor to the injury and ongoing symptoms in Dr Isbister’s view. He did not think Mr Beaton was fit to drive long distances, but felt that he was fit to carry out light work. This included sedentary office work without lifting or bending activities, with the ability to rise and sit regularly. He noted that a spinal fusion may need to be reconsidered “at some stage”. He assessed Mr Beaton as suffering a 20 per cent permanent impairment of the back, with 18 per cent impairment directly attributable to the injury on 15 June 2001.
On 14 February 2008, Mr Beaton was examined by Dr Michael Long for the second respondent. Dr Long obtained a history that, following injury on 15 June 2001, Mr Beaton returned to work after about one week, full time in the warehouse. He then continued with Pinners until that organisation closed after about four months. Mr Beaton told Dr Long that he found employment driving between Shepparton and Sydney for ID Transport. He continued for four months, at which time he was forced to give up his employment as a result of back pain and has not been employed since. Dr Long noted that, in the accident, Mr Beaton suffered a bruise to the lower lumbar region which became swollen with a blood clot and required aspiration on two occasions. He noted that Mr Beaton became depressed and became reclusive. In terms of his back, he reported that he suffered continuous lumbar back pain which he graded at 7/10. He indicated that the pain, which did not radiate, had remained constant over the past six years. He also reported neck pain associated with activity and some limitation of movement. Mr Beaton stated that, during the day, he did “as little as possible”. He was apprehensive about returning to work in case it aggravated his back symptoms. He had had no rehabilitation or retraining. He told Dr Long that he was keen to regain his truck driver’s licence and resume his pre-injury employment as an interstate truck driver. It is apparent that, when examined by Dr Long, he had by then recovered his heavy vehicle driver’s licence, which Dr Long used as a means of confirming his identity. Dr Long recorded his physical examination, his examination of the radiological investigations, and a chronology of other relevant assessments. He concluded that, as a result of the motor vehicle accident, Mr Beaton aggravated pre-existing, asymptomatic, degenerative changes and significantly caused disruption, with protrusion anteriorly and posteriorly, of the L5/S1 disc. The symptoms were reproduced by discogram with injection at that level. He noted the presence of pre-existing degenerative disc and facet joint disease, as depicted on the MRI scan of the lumbar spine.
Dr Long believed that the accident caused aggravation of pre-existing degenerative changes of the cervical spine, but that the aggravation had ceased. Whilst Mr Beaton complained of continuous pain in the lower back, he noted the absence of any radiculopathy.
Although Mr Beaton indicated that, because of his ongoing symptoms, particularly in his back, he would find it difficult to return to any worthwhile employment, including interstate truck driving, Dr Long was unable to find any physical abnormality sufficient to indicate that he was not fit for such employment. He said, “It is determined that Mr Beaton is fit with regard to his back and neck injury to return to work, including his pre-injury work, provided he is restricted from lifting items heavier than 10 kg; and without excessive bending, stooping or twisting”. Dr Long went on to state that, from the physical point of view, Mr Beaton was fit to resume his pre-injury employment and would be fit to do so on a full-time basis. He discounted the prospect of any surgical intervention being beneficial. He found evidence of non-organic factors contributing to Mr Beaton’s symptomatology, and felt that there was voluntary exaggeration of his symptoms. He commented:
“Mr Beaton has genuine back pain, probably related to the disrupted L5/S1 lumbar disc. However, movement of his back was unrestricted without muscular spasm or guarding. There was no clinical evidence of radiculopathy. Should he return to work, he would probably be assisted by wearing a velcro-type lumbar spine [brace] when working; and by the provision of effective seating, particularly in the vehicles he drives.”
Dr Long assessed a 20 per cent impairment of the back, with a deduction of one-tenth for pre-existing degenerative changes, resulting in a final impairment of 18 per cent.

Wage Schedules

The wages schedules filed by both parties indicate continuous earnings, albeit at various levels, from the date of accident to the present time. The worker’s schedule indicates earnings from 1 July 2008 at the rate of $206.00 per week. The respondent’s wage schedule suggests earnings as at 30 June 2009 at $702.00 per week. Mr Beaton’s Notice of Assessment from the Australian Taxation Office for 30 June 2001 indicated a taxable earning of $48,047.00. The Notice was amended on several occasions, resulting in a final assessable income for that year of $51,988.00. For the year ending 30 June 2002, Mr Beaton’s assessable income was $43,933.00. For the year ending 30 June 2003, his taxable income was $46,182.00. For the year ending 30 June 2004, his taxable income was $20,156.00. In his tax return for the financial year ending 30 June 2005, the only income declared was from sickness benefits and a Newstart allowance. The same applied in the 2005-2006 tax year. However, in his 2007 tax return, he listed his occupation as forklift driver and declared a total income of $19,300.00, of which some $5,457.00 involved government allowances and subsidies, $10,000.00 was described as an “eligible termination payment”, and the balance was from personal exertion. In the 2007-2008 return, Mr Beaton declared earnings from Galaxy No 1 Pty Limited of $30,398.00 gross. He described his occupation as forklift driver.

ARBITRATOR’S FINDINGS

The Arbitrator was satisfied that there was sufficient evidence to support a finding that the worker sustained an injury to his neck and back in the accident on 15 June 2001.
After considering the medical evidence, the Arbitrator concluded that, on the material before him, by the time Mr Beaton ceased working for the first respondent in September 2001, he was not suffering from any permanent neck or back pain emanating from the injury at work on 15 June 2001. The Arbitrator found that there was no evidence of any complaints of back pain by Mr Beaton to his general practitioner or employer until some time in February 2002, some eight months after the accident. So far as the back was concerned, apart from complaints of back pain for a few days after the accident, which were probably the result of the haematomas requiring aspiration, there were no further complaints of back pain until February 2002, eight months after the accident. So far as the neck was concerned, the Arbitrator noted the worker concession that there were no further complaints of back pain after the accident until August 2003.
The Arbitrator found that, although Mr Beaton continued to consult his general practitioner from the date of the injury on a continuous basis until February 2002, those consultations (except for the aspiration of the haematoma) were related to the worker’s psychological state, for which he was receiving medication in the form of Zoloft.
The Arbitrator took into account Dr Dohrmann’s observations following the results of an MRI, which led to a diagnosis of significant disc lesions at C5/6 and C6/7. He also noted Dr Barrett’s evidence regarding the presence of a significant disc disruption at L5/S1. However, the Arbitrator noted that these conclusions were predicated on the basis that the worker had provided a history of continuing back and neck pain since the accident of 15 June 2001, an assertion which was not substantiated by the contemporaneous notes of the worker’s general practitioner.
In accordance with the decision in Peric v Chul Lee Hyuong Ho Shin Jong Lee and Mi Ran t/as Pure and Delicious Healthy and anor [2009] NSWWCCPD 47 (‘Peric’), the Arbitrator declined to refer the claims for lump sum compensation to an Approved Medical Specialist, in view of his findings that the worker suffered no permanent impairment beyond September 2001.
Accordingly, the Arbitrator entered an award for the respondent on all claims.

THE APPELLANT’S SUBMISSIONS

Ground One:

The Arbitrator erred in finding that the injuries the worker sustained to his neck and back as a result of the accident on 15 June 2001 were not permanent and did not continue after September 2001.
In support of Ground One, the appellant submits that the Arbitrator erred:
·in finding that there was insufficient evidence of continuous complaints of neck and back pain from the date of the accident to satisfy a finding of injury that continued after the appellant had ceased his employment with the respondent;
·in referring to contemporaneous notes of the general practitioner, when the notes were not in evidence;
·in failing to give sufficient weight to the evidence of Dr Pedrotti, particularly as recorded in his report of 17 February 2004, where he recorded Mr Beaton’s complaints of low back pain deteriorating significantly over the previous 12 months, to the point where he alleged constant, severe, low back pain;
·in failing to accept Dr Pedrotti’s explanation that, at the time of the accident, the head injury suffered by the worker and the multiple severe soft tissue injuries dominated his symptoms;
·in finding that the worker did not make any complaint of pain on admission to Wagga Wagga Base Hospital, nor whilst he was an inpatient;
·in finding that the worker ceased to suffer from the effects of the injuries to his neck and back, such finding being against the weight of the evidence, including all treating doctors and all but one medicolegal expert;
·by failing to address the causation issue “properly”, the Arbitrator made an error of law;
·on the question of causation, the Arbitrator failed to consider the pathology in the worker’s back or neck as required, other than to conclude the only pathology caused by the accident was haematomas at the site of the lower back injury;
·by not considering the causation of the pathology referred to by Drs Dohrmann and Barrett “and addressing how the direct insult to the spine (and causative of the haematoma) was unrelated to the disc derangement of the lumbar spine”.

Ground Two:

The Arbitrator erred in failing to consider the appellant’s incapacity as a result of injuries sustained on 15 June 2001in failing to consider:
·the question of incapacity other than to observe that the appellant was able to return to intermittent work and could perform work comparable with that of a storeman, concluding that no incapacity existed;
·that the appellant’s ability to perform work intermittently did not mean that he did not suffer from incapacity;
·that the weight of medical evidence supported a finding that the worker was not fit for heavy work and therefore suffered “some incapacity for work”.
For the purposes of an assessment under section 40 and the application of the steps in Mitchell v Central West Health Service [1997] 14 NSWCCA 527 (‘Mitchell’), the worker submits that the weekly amount he would have been earning is that of an interstate truck driver.
As the worker’s pre-injury employer no longer exists, the earnings of comparable employees have been based on the worker’s actual earnings in 2001 increased by three per cent per year.
In terms of the worker’s ability to earn in suitable employment, the worker submits that, at all times, he has attempted to exercise his earning capacity to the limit of his ability and, consequently, his actual earnings should form the basis of the assessment of his ability to earn in suitable employment.

Ground Three:

The Arbitrator erred in failing to refer to an AMS the injuries to the neck and back sustained as a result of the accident.
The worker submits that, should injury be found in accordance with these submissions, the worker should be awarded compensation reflecting 18 per cent permanent impairment of the back.

THE RESPONDENT’S SUBMISSIONS

As to Ground One:

The evidence discloses that the worker had been able to walk around at the scene of the accident prior to the attendance of ambulance officers. The provision of a neck brace was a precaution only. Notwithstanding that the worker suffered grazes and lacerations to his buttocks and back, there was no complaint of back pain per se and, on specific examination at Wagga Wagga Base Hospital on the morning of the accident, the back is recorded as “non-tender”. The worker was certified fit for return to normal duties on 24 July 2001.
Subsequently, the worker was treated by Dr Pedrotti. He was initially treated for aspiration of the haematoma to the lower back, but otherwise the complaints related to post-concussional symptoms.
It was not until February 2002 that the worker first complained of back pain to Dr Pedrotti, and July 2003 before he complained of neck symptoms. Whilst it is correct to note that the Arbitrator did not have the benefit of Dr Pedrotti’s notes, he did have the benefit of a number of reports from Dr Pedrotti.
Apart from the initial medical certificates issued soon after the accident, the first certificate of incapacity was provided by Dr Tavcar, is dated 30 October 2003, and referred to the L5/S1 disc lesion, post-concussion syndrome and depression. The certificate is consistent with this being the first occasion of incapacity, as suggested by the worker to a number of doctors in their contemporaneous histories, but entirely inconsistent with the worker’s assertion of not working since March/April of 2002.
The onset of symptoms in the lumbar and the cervical spine in February 2002 and July 2003 respectively occurred at a time when the worker was undertaking interstate truck driving duties for other employers.
The medical evidence supportive of a causal relationship with the accident is predicated on the presumption that the worker had continuing symptoms from the occurrence of the accident, a fact that has not been made out. Based on the principles in Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305 (‘Makita’) at par 85, it was appropriate that the Arbitrator gave those reports very little weight.
The respondent submits that the Arbitrator adequately analysed the issues and the evidence, in particular, the conflicting medical evidence, and his reasons for his preference for certain parts of the evidence and his conclusions.
The Arbitrator was correct to find that there was no cause to refer the claims for lump sum compensation to an AMS, having regard to his findings that the worker suffered no permanent impairment after September 2001. The submission that the worker suffered a significant disc lesion in the lower spine with sciatic symptoms, and cervical lesions with radiation into the arms as a direct result of the accident on 15 June 2001 is inconsistent with the lack of any relevant complaint, and the continuation of heavy work requiring lengthy, non-stop, interstate driving until the first demonstration of incapacity in October 2003.

As to Ground Two:

The worker’s evidence that he has not worked since March or April 2002 is inconsistent with other evidence indicating that Mr Beaton worked a number of different jobs after his employment with ID Transport ceased, but the material is so imprecise and unsupported by a statement from the worker, or his banking and taxation records, that any reasonable assessment of the work performed, the length of employment or the reasons for the cessation of employment is not possible.

As to Ground Three:

Consistent with the decision in Peric, the Arbitrator having determined that the worker had no causally related injury, referral to an AMS was not necessary.

DISCUSSION AND FINDINGS

There can be no doubt that, on 15 June 2001, Mr Beaton was involved in a particularly violent motor vehicle accident when the truck being driven by him struck another vehicle at high speed. The force of the collision was sufficient to dislodge the driver’s cab from the chassis, causing it to travel some considerable distance from the point of impact before coming to rest.
The police records and hospital notes confirm complaints of neck and back pain following the accident.
In the weeks and months following the accident, Mr Beaton sought treatment from his general practitioner, Dr Pedrotti, for a number of complaints. They were mainly focused on treatment of his post-concussion syndrome and depression, for which he was being prescribed Zoloft.
It is also undeniable that in the accident Mr Beaton suffered an injury to the lower back which resulted in a large, liquefied, central haematoma that required aspiration on a number of occasions.
For reasons best known to himself, Mr Beaton has chosen to plead his case on the basis of the injuries to his neck and back to the exclusion of all other injuries sustained in the accident. The Arbitrator made findings that Mr Beaton suffered injuries to his neck and back as a result of the motor vehicle collision on 15 June 2001.

The Arbitrator was not satisfied, however, that the injuries were permanent. Indeed, he found that Mr Beaton had recovered from the effects of the injuries to his neck and back by the time he ceased his employment with Pinners in September 2001.
It is clear that the Arbitrator was heavily influenced by a lack of complaints by Mr Beaton to his general practitioner or his employer until he further complained of back pain after the initial treatment in February 2002, some eight months after the accident. In so far as the neck is concerned, there were no complaints to his general practitioner of further neck pain until August 2003.
The worker’s own evidence concerning the continuity of back pain after the accident is brief and incomplete. The worker’s first statement dealing with the period between January 2001 and May 2006 consists of just two-and-a-half pages. His “further statement”, signed three years later in May 2009, consists of only five short paragraphs. He gave no oral evidence.
Mr Beaton stated that, after resuming work, he noticed pain in his back after a couple of days. He went back to see Dr Pedrotti. It would appear that Dr Pedrotti diagnosed the haematoma and treated it over a period of time. Several months after the accident, Pinners went into liquidation. In about September 2001, Mr Beaton commenced work as a truck driver for ID Transport on a full-time basis. He said that he required painkillers to enable him to carry out his duties with ID Transport. Further, he stated that, after six months of that work, the pain in his back became unbearable and he was forced to stop working in about April 2002.
Mr Beaton’s allegation of continuous back pain since the accident is consistent with the history he provided to a number of doctors, including Drs Prentice, Macintosh, Long, Barrett and Joubert. Dr Isbister took no history of the onset of back pain, nor did Dr Dohrmann, which is perhaps explained by the fact that Dr Dohrmann was retained to treat the injuries to the neck.
Pinners submission that Mr Beaton made no complaints of back pain following his initial complaints until February 2002 is incorrect. Dr Prentice recorded complaints of back pain when he saw the worker on 1 September 2001.
Dr Pedrotti said that, from July 2001, when he first started to treat Mr Beaton, the dominant features of his injuries were the post-concussion syndrome, complaints of severe headaches, memory impairment and the development of a stutter.
The radiological investigations referred to at [50] demonstrate a significant degree of degenerative change in Mr Beaton’s cervical and lumbar spine. Overlaying the degenerative changes is the existence of anteriorly and posteriorly ruptured L5/S1 disc revealed by the lumbar discogram on 6 August 2003.
Pinners submit that the onset of symptoms in the lumbar and cervical spine in February 2002 and July 2003 respectively occurred at a time when Mr Beaton was undertaking interstate truck driving duties for other employers. It is submitted that those complaints would be consistent with the widespread degenerative changes found in the lumbar and cervical spinal structures, and thus it may be open to infer that the onset of symptoms is consistent with an aggravation of the pre-existing degenerative changes provoked by long-distance truck driving.
The respondent’s medical evidence was not that Mr Beaton was injured as a result of the effects of long distance truck driving. Their case, through Drs Macintosh, Long and Joubert, was that Mr Beaton was injured as alleged, but the effects of the injury had ceased. Notwithstanding that each of these doctors was aware of the worker’s post-accident work as an interstate truck driver, none ventured the opinion that that work resulted in any injury or aggravation of the worker’s condition. Therefore, I decline to draw the inference urged by the respondent.
In determining whether I can be satisfied to the requisite standard of proof that Mr Beaton suffered pain in his neck and back continuously since the motor vehicle accident in June 2001, I am guided by the principles discussed in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (‘Nguyen’), where McDougall J (McColl and Bell JA agreeing), after analysing the relevant authorities, said at [55]:
“The position may be summarised as follows:
(1)   A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)   Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)   Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4)   A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
I accept Mr Beaton’s evidence that he continued to suffer from neck and back pain following the accident. His statements to this effect are consistent with the histories he has given to numerous doctors. I accept Dr Pedrotti’s evidence that, in the initial aftermath of the accident, Mr Beaton’s complaints and treatments were focused on his neurological symptoms, including the post-concussion syndrome and its effects. Bearing in mind the principles enunciated in Nguyen, I am satisfied, having regard to all the evidence, that Mr Beaton suffered injuries to his neck and back in the accident on 15 June 2001 and has continued to suffer from neck and back pain thereafter.
The findings expressed in the preceding paragraph therefore form a solid foundation for the view expressed by Dr Pedrotti that Mr Beaton suffered injuries to his lumbar and cervical spine, including disc damage in both areas.
The findings also provide a foundation for the acceptance of the view expressed by Dr Barrett that Mr Beaton suffered a painful and traumatic rupture of the L5/S1 disc.
I also accept the view expressed by Dr Dohrmann that the disc lesions found in Mr Beaton’s cervical spine at C5/6 and C6 level pre-existed the accident, but were exacerbated and rendered symptomatic as a result of it.
Dr Isbister also accepted the existence of pre-existing degenerative changes which were aggravated by the injuries sustained in the motor vehicle accident. He also felt that the direct blow to the lower back producing haematoma was consistent with the traumatic rupture of the L5/S1 disc.
The opinions expressed by Drs Macintosh, Long and Joubert each accept that Mr Beaton suffered injuries to his neck and back, but believe that the aggravating effects of the injury on the pre-existing degenerative changes have ceased. Dr Macintosh accepted that Mr Beaton suffered degenerative disease in his lumbar and cervical regions. He accepted a significant soft tissue injury to the neck and the lumbar spine related to the accident. However, his opinion that the effects of those injuries have resolved is unexplained. Dr Macintosh made no attempt to explain his opinion that the aggravating effects of the injury had ceased, particularly in view of the complaints of persistent and acute pain since the accident. For that reason, I have placed little weight on his opinion (see Makita; South West Sydney Area Health Service v Edmunds [2007] NSWCA 16).

Dr Long accepted that Mr Beaton had sustained an aggravation of pre-existing asymptomatic degenerative changes in his lumbar spine and probably suffered a significant disruption of the L5/S1 intervertebral disc. He also accepted an aggravation of pre-existing asymptomatic degenerative changes in the cervical spine. Dr Long expressed the view that the aggravating effects of the injury on the cervical spine had ceased. Although he made reference to evidence of voluntary exaggeration of symptoms, he gave no specific reason for his opinion that, notwithstanding the existence of continuing symptoms, the aggravation of the cervical spine had ceased. Notwithstanding his findings of significant injuries to the lower back, Dr Long expressed the view that there was no physical abnormality sufficient to indicate that Mr Beaton was not fit for employment. Given Dr Long’s acceptance of an aggravation of pre-existing degenerative changes in the lumbar spine and the presence of a disrupted L5/S1 intervertebral disc, his comment that there was no physical abnormality to indicate incapacity is contradictory and unexplained, and I reject it.
Like Dr Macintosh and Dr Long, Dr Joubert expressed the view that Mr Beaton had fully recovered from the effects of his injury on 15 June 2001. He accepted that Mr Beaton had been involved in a significant motor vehicle accident and continued to experience chronic headache and lumbar pain. He found, on examination, mild limitation of flexion of the lumbar spine, but no other abnormality. Dr Joubert failed to explain the significance of the radiological investigations, including the CT scan and MRI of the lumbar spine demonstrating degenerative changes. He did not have the benefit of the discogram, which post-dated his assessment, and which demonstrated the ruptured L5/S1 disc. To the extent that Dr Joubert’s opinion is inconsistent with those of Drs Barrett, Prentice, Dohrmann and Isbister, I prefer the latter.
Having considered the whole of the evidence, although it is not free from doubt, I am satisfied, on the balance of probabilities, that Mr Beaton has established that he suffered injuries to his back in the form of an aggravation of pre-existing degenerative changes and a rupture of the L5/S1 intervertebral disc. I find that the effects of those injuries are continuing. I am also satisfied that Mr Beaton has established injuries to his cervical spine in the form of an aggravation of pre-existing degenerative changes, the effects of which are persisting.
Having regard to the provisions of section 9A(2) of the 1987 Act and the recent statements by the Court of Appeal in Badawi v Nexon Asia Pacific Pty Ltd trading as Commander Australia Pty Ltd [2009] NSWCA 324; (2009)7 DDCR 75, I am satisfied that the connection between the worker’s employment and the injury was “real and of substance” and that his employment was a substantial contributing factor to the injury.
It follows that the Arbitrator’s decision must be revoked and the matter re-determined. It is desirable, where appropriate, that a presidential member finally determine the matter; Chubb Security Australia Pty Limited v Trevarrow [2004] NSWCA 344.
Regrettably, in view of the state of the evidence, I do not believe that I have sufficient information to determine the extent of the worker’s incapacity, nor sufficient information to determine the quantum of any award. Of the evidence that I have accepted, the most recent in terms of any assessment of the worker’s capacity for employment is that of Dr Pedrotti, which is now two years old. Dr Barrett’s opinion that Mr Beaton was not fit for truck driving work was expressed in 2006 and the opinions of Drs Prentice and Dohrmann, which limit the worker’s capacity to light work, were expressed in 2004.
Moreover, the worker’s evidence that he ceased work in or about September 2002 is clearly incorrect. His taxation records reveal substantial levels of earnings throughout 2002 and 2003.
Although there are wage schedules filed by either side, they are inconsistent and lack sufficient supporting evidence to make any evaluation of them. Whilst the worker has filed some income tax returns, he has not filed all of them covering the relevant period in issue. The records that are in evidence are incomplete and do not include, for example, group certificates from relevant employers to assist in determining particular periods of employment and income earned.
It follows that, regrettably, the matter must be remitted for re-determination by another Arbitrator.
Prior to the matter proceeding, it will be necessary for the worker’s solicitor to prepare a detailed and comprehensive statement concerning, in particular, the worker’s post-accident employment and earnings history, together with details of his current earnings, if any, evidence in relation to his current complaints, and any job-seeking activities.
It will also be necessary for the medical evidence to be updated to assist in a determination of the worker’s fitness for employment during the period claimed and currently.

CONCLUSION

Having conducted a ‘review on the merits’ (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249), I conclude for the reasons stated that, on the balance of probabilities, the worker, Mr Beaton, sustained injuries to his lumbar and cervical spine as a result of his involvement in a motor vehicle collision on 15 June 2001. I have concluded that the worker continues to suffer from the effects of the injuries sustained.

DECISION

The Arbitrator’s Determination of 14 January 2010 is revoked and the matter is remitted to a different Arbitrator for the applicant worker’s entitlements to compensation to be re-determined in accordance with the reasons in this decision and to make the referral to the Registrar for referral to an Approved Medical Specialist.
The second respondent is to pay the costs of the worker of the first arbitration hearing.

COSTS

The second respondent is to pay the appellant’s costs of the appeal.

His Hon Judge G Keating
President
26 May 2010

I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE