BHP Billiton Ltd v Bourke
[2009] NSWWCCPD 117
•22 September 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| STATUS: Reported Decision: BHP Billiton Ltd v Bourke (2009) 7 DDCR 535 | |||||
| CITATION: | BHP Billiton Limited & Anor v Bourke & Ors [2009] NSWWCCPD 117 | ||||
| FIRST APPELLANT: | BHP Billiton Limited | ||||
| SECOND APPELLANT: | BlueScope Steel Limited | ||||
| FIRST RESPONDENT: | Jeffrey Thomas Bourke | ||||
| SECOND RESPONDENT: | Toll Pty Ltd | ||||
| INSURERS: | Self insured | ||||
| FILE NUMBERS: | A1-10403/08 | ||||
| A2-10403/08 | |||||
| ARBITRATOR: | Mr M Oldfield | ||||
| DATE OF ARBITRATOR’S DECISION: | 4 June 2009 | ||||
| DATE OF APPEAL DECISION: | 22 September 2009 | ||||
| SUBJECT MATTER OF DECISION: | Adequacy of reasons; causation; apportionment under sections 22 and 22A of the Workers Compensation Act 1987 | ||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Michael Snell | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | First Appellant: | Sparke Helmore | |||
| Second Appellant: | Sparke Helmore | ||||
| First Respondent: | Whitelaw McDonald | ||||
| Second Respondent: | Bartier Perry | ||||
| ORDERS MADE ON APPEAL: | 1. The decision of the Arbitrator dated 4 June 2009 is amended as follows: | ||||
| (i) Delete paragraph [1] in its current form, and substitute the following: | |||||
| “1. That the Second and Third Respondents pay the Applicant weekly payments of compensation of $422.20 per week pursuant to section 40 of the Workers Compensation Act 1987 from 1 July 2005 to date and continuing in accordance with the maximum statutory rate for a worker with a dependant spouse. The said weekly payments are to be contributed one third by the Second Respondent and two thirds by the Third Respondent.” | |||||
| (ii) Delete the sentence “The First Respondent is liable for expenses only in relation to the Applicant’s left great toe.” from paragraph [2]. | |||||
| (iii) In paragraph [4] insert the words “Second and Third” immediately before the word “Respondents”. | |||||
| (iv) Add the following paragraph: “Award in favour of the First Respondent.” | |||||
| 2. The balance of the decision is confirmed. | |||||
BACKGROUND TO THE APPEAL
Jeffrey Thomas Bourke (‘Mr Bourke’) is 60 years of age, left handed, and has a dependant wife. He worked as a stevedore from about 1968, and was employed at Port Kembla from 1979. The work, according to the medical histories, was heavy. The identity of his employer changed from time to time, although there is no indication this was accompanied by a change in the nature of his work. This has resulted in the multiplicity of parties in the current proceedings. He ceased working in July 2005.
The first of the employers in time, at least for the purposes of these proceedings, was BHP Billiton Limited (‘BHP’). This company employed Mr Bourke at the time of injuries to the right foot alleged to have occurred on 7 October 1984 and 28 June 1986. An injury book setting out Mr Bourke’s reported injuries from 15 July 1981 to 26 February 2001 is attached to BlueScope’s Reply. It confirms injuries to the right foot and/or lower leg on the two days alleged, together with an earlier incident involving the right foot on 15 July 1981. The precise nature of these injuries was the subject of controversy. An x-ray of the right foot on 12 January 2007 demonstrated “moderately severe osteoarthritic change in the big toe”, and “an old avulsed fragment related to the medial aspect of the metatarsal head”.
The next pleaded injury was on 9 November 1996. BlueScope Steel Limited (‘BlueScope’) was the employer on this occasion. It is alleged Mr Bourke was lifting heavy coil chain when he injured his left shoulder. He lodged a claim form dated 14 November 1996. Medical certificates from Dr Ledner indicate he was unfit for work from 11 November 1996 to 3 February 1997. He saw the orthopaedic surgeon Dr Goldberg, who diagnosed post traumatic impingement, and said Mr Bourke was unfit until 6 June 1997, and fit for selected duties (avoiding repetitive and overhead work) from 7 June 1997. Mr Bourke came back to work on a rehabilitation plan, and resumed his pre-injury duties from 25 July 1997. BlueScope accepted liability pursuant to the Workers Compensation Act 1987 (‘the 1987 Act’).
Mr Bourke was assessed on 24 June 2002 by Dr Evans, at the request of a firm of solicitors. He recorded a history that Mr Bourke was carrying out his normal duties, but could experience left shoulder pain when working. He found left shoulder movements to be “much reduced”, with mild muscle wasting and marked crepitus. He thought Mr Bourke was unfit for the work he was then carrying out, and assessed 22% permanent loss of use of the left arm at or above the elbow. A claim pursuant to sections 66 and 67 of the 1987 Act resolved, and a section 66A Agreement was registered on 4 February 2003, for a sum of $15,000.00 in respect of 20% loss of use of the left arm at or above the elbow, and $10,000.00 for pain and suffering.
The last pleaded injury occurred on 19 May 2005, by which stage Toll Pty Limited (‘Toll’) was Mr Bourke’s employer. It is alleged he was handling chains that go around slabs, lowering the slabs into the hull of a ship. He states the crane being used in the operation was faulty, and there was a lot of vibration. He injured his lower back, right shoulder and arm. Toll referred him to Dr Mill, who he saw on 25 May 2005. He commenced physiotherapy and was placed on light duties. Mr Bourke’s statement says he was made redundant in July 2005, at which time he was performing light duties as certified by Dr Mill. Dr Mill’s report would suggest the redundancy took effect at some time between 11 and 25 July 2005. Mr Bourke has not worked since.
Mr Bourke returned to Dr Goldberg in about June 2006, complaining of symptoms in both shoulders. Both shoulders were wasted and globally tender, and impingement sign was bilaterally positive. Dr Goldberg diagnosed a rotator cuff tear in the left shoulder, and chronic impingement on the right. On 28 November 2006 Dr Goldberg performed surgery on the left shoulder, involving arthroscopic rotator cuff repair and acromioplasty.
Mr Bourke was assessed by Dr Wallace, an orthopaedic surgeon, at the request of his solicitors, on 3 August 2007. His solicitors served his report dated 6 September 2007, and claimed weekly compensation, the payment of medical expenses, and lump sum compensation, from both BlueScope and Toll, by letters dated 31 October 2007. These claims were rejected by BlueScope (section 74 notice dated 6 December 2007) and Toll (section 74 notice dated 25 September 2007). Dr Wallace’s report dated 6 September 2007 made no mention of injury to, or symptoms involving, the right foot.
Dr Wallace re-examined Mr Bourke on 15 February 2008, producing a further report dated 2 April 2008. This report dealt with the right foot, in particular a crush injury on 28 June 1986. The report mentions the three injuries described at [2] above.
Mr Bourke lodged a claim form dated 1 June 2008, relating to the injury of 28 June 1986. That document refers to the employer as “BlueScope Steel Pty Ltd – formerly BHP Steel (AIS) Pty Ltd – BHP Transport”. It is not suggested anything turns on this discrepancy in the employer’s name. Solicitors acting for BHP had Mr Bourke examined by Dr Bornstein, orthopaedic surgeon on 16 September 2008. A section 74 notice was issued dated 31 October 2008 declining liability.
The Application to Resolve a Dispute, in respect of all three relevant employers, was registered on 24 December 2008. Weekly compensation was claimed at a rate of $1,717.00 from each of the employers, from 1 July 2005, together with medical and related expenses pursuant to section 60 of the 1987 Act. There was a claim pursuant to sections 66 and 67 against BlueScope for a further 5% loss of use of the left arm at or above the elbow. There was a claim pursuant to sections 66 and 67 against BlueScope for 12% whole person impairment in respect of the injury of 19 May 2005.
The matter proceeded to arbitration on 13 May 2009. All parties were legally represented. The solicitor acting for BHP cross-examined Mr Bourke by leave. All parties addressed, and the Arbitrator reserved his decision.
THE DECISION UNDER REVIEW
The ‘Amended Certificate of Determination’, dated 4 June 2009 records the Arbitrator’s orders as follows:
“1. That the Respondents pay the Applicant weekly payments of compensation of $422.20 per week pursuant to s 40 of the Workers Compensation Act 1987 from 1 July 2005 to date and continuing in accordance with the maximum statutory rate for a worker with a dependant spouse. The said weekly payments are to be contributed 10% by the First Respondent, 30% by the Second Respondent and 60% by the Third Respondent.
2. That the Respondents pay the Applicant’s s 60 of the Workers Compensation Act 1987 medical and related expenses upon the production of accounts and/or receipts. The First Respondent is liable for expenses only in relation to the Applicant’s left (sic) great toe. The Second Respondent is liable for expenses only in relation to the Applicant’s left shoulder. The Third Respondent is liable for expenses only in relation to the Applicant’s right shoulder and lumbar spine.
3. That the disputes concerning the Applicant’s claim for lump-sum compensation pursuant to s 66 of the Workers Compensation Act 1987, being for further loss of efficient use of the Applicant’s dominant left arm at or above the elbow (date of injury 9 November 1996) and whole person impairment of the Applicant’s right upper extremity (right shoulder) and lumbar spine (date of injury 19 May 2005), is to be referred to an Approved Medical Specialist appointed by the Registrar. The evidence admitted into these proceedings is to be disclosed to the Approved Medical Specialist.
4. That the Respondents pay the Applicant’s costs as agreed or assessed at the completion of the dispute. The payment of the costs is to be in the same percentage proportion as expressed in Order 1 above.”
ISSUES IN DISPUTE
BHP lodged an Application to Appeal Against Decision of Arbitrator on 9 June 2009. It appeals against that part of the decision that finds Mr Bourke suffered injury on 7 October 1984, and that 10% of the weekly award be apportioned against it. The submissions note that an appeal pursuant to section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) is by way of review. The submissions essentially argue the issue on a factual basis, and submit “a proper consideration of the evidence would necessarily lead to an alternative conclusion as compared with that found by the Arbitrator”. It is also submitted the Arbitrator failed to give adequate reasons.
Mr Bourke submits the decision was correct; alternatively it is submitted that, whichever of the three potential injuries to the right foot caused the fracture, all occurred at work, and were compensable, so the same result would flow regardless of which were found to be causative. It is submitted that, if BHP’s appeal does succeed, this should not result in the weekly award being varied in any event. BlueScope made no submissions going to the ‘injury’ finding appealed against, although supported BHP’s argument that the reasons were inadequate, and that the Arbitrator had not properly identified the evidence to support his findings on incapacity and apportionment. Toll adopted Mr Bourke’s submissions in opposition to this appeal.
BlueScope lodged an Application to Appeal Against Decision of Arbitrator, on 23 June 2009. BlueScope appeals solely against the apportionment against it, of liability for 30% of the weekly award. It is submitted the reasons were inadequate, and the Arbitrator failed to identify the evidence that led him to that conclusion. The submissions then make factual arguments against the apportionment. Mr Bourke makes no submissions, in respect of this appeal. BHP agrees with BlueScope as regards the inadequacy of the reasons. It submits that, if BlueScope’s appeal should succeed, an alternative apportionment should be substituted on appeal. Toll submits the apportionment was open to the Arbitrator on the evidence. It makes factual submissions going to the ongoing effects of the left shoulder injury in BlueScope’s employ, in particular BlueScope’s ongoing acceptance for treatment costs, including the surgery in 2006. It also refers to the earlier agreement of BlueScope to compensate Mr Bourke in respect of 20% permanent loss of use of the left arm at or above the elbow.
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.”
Initially, all parties submitted the appeals could be determined on the documents before me, without the need for an oral hearing. Subsequently, BlueScope submitted that the “adjusted rights of four parties may be affected”, and the two appeals should be dealt with together, orally. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the majority of 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.
Both appeals were lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The amount of compensation in each of the appeals exceeds the sum of $5,000.00 prescribed in section 352(2)(a), and at least 20% of those amounts are appealed against. The requirements of section 352(2) are satisfied. The respondents to the appeals do not argue otherwise.
I grant leave to appeal to each of the appellants in these proceedings.
DISCUSSION AND FINDINGS
BHP’S Appeal
I will deal initially with BHP’s appeal, as the outcome of that will affect the parties against which apportionment is available, pursuant to section 22 of the 1987 Act, apportionment being the subject of BlueScope’s appeal.
The Factual Background
Although BHP describes the dispute regarding the foot as an ‘injury’ issue, there is no real doubt, having regard to the contemporaneous entries in the injury book, and the absence of any evidence to the contrary, that each of the three injuries referred to at [2] above occurred. The issue rather was whether the arthritic condition, demonstrated at x-ray on 12 January 2007, resulted from any of the pleaded injuries. The arbitrator dealt with this at [5.2] to [5.4] of his reasons.
BHP’s solicitor cross-examined Mr Bourke regarding the injury on 28 June 1986. Mr Bourke agreed with the cross-examiner that it was after the injury in 1986 that he thereafter complained of slight pain in the foot (T1.55-2.5). He said he could remember the day quite clearly, when a “temp four” rolled onto his foot (T2.10). He described the incident in some detail (T2.25-2.55). It was put to Mr Bourke that at the time of that injury he was complaining about pain in his shin, which he denied (T2.20-2.55). He agreed he was wearing a steel cap boot at the time (T2.55).
The significance of the cross-examination is to be found in the injury book entry for 28 June 1986, together with the report of Dr Bornstein on which BHP relied. The injury book records the nature of injury and how it was received as follows:
“R foot instep (illegible) C/o pain redness R shin lower 1/3 C/o pain redness.”
“sling of temp core rolled onto R foot and shin felt pain”
The nature of the injury on 15 July 1981, and how it was received, is described in the injury book in the following terms:
“Rt foot. Base of great toe C/o pain. Slight swelling with Redness”
“Caught foot under steel plate. ‘Below’ 5 Hatch ‘IRON MYARRA.”
There is an accident report dated 16 July 1981. It confirms the name of the ship on which the incident occurred, and describes the nature of injury and how it occurred in similar terms to the injury book entry. It also has ‘Ambulance Officer’s Remarks’ that read:
“Man came in 16.7.81 5.40pm States still sore. Will see LMO if foot gets worse.”
There is a formal report of injury form pursuant to the Workers Compensation Act 1926 (the date is obscured) that describes the injury:
“Whilst lifting dogs my right foot got caught in between plates crushing my right great toe.”
There are three medical certificates from Dr Upton. That of 17 July 1981 describes “Injury to base right great toe”, and certifies Mr Bourke unfit for work from 17 to 24 July 1981. That of 27 July 1981 states Mr Bourke will be fit to resume work on 29 July 1981. An undated certificate states “Mr J Bourke had a crush injury around this (?) /81. Metacarpo-phalangeal joint on the right foot.”
The injury book entry for the incident on 7 October 1984 describes the nature of that injury and how it occurred:
“R/Big toe c/o pain N.V. (about toe)”
“Dunnage dropped on foot.”
Dr Wallace’s original report dated 6 September 2007 contained no mention of right foot complaints, or the various incidents involving the right foot, referred to above. Mr Bourke’s medical support for his case on causation of right foot symptoms was in Dr Wallace’s report dated 2 April 2008. In that report Dr Wallace records:
“Mr Bourke does not recall any injury to his right foot in the course of his duties at work on 7th October 1984. He suffered a crush injury at his right foot in the course of his duties at work on 28th June 1986. At that time he was loading temp core steel in three tonne bundles. As the bundles were put onto the wharf, Mr Bourke would unhook one limb of the sling, while his co-worker unhooked the other. One of the steel bundles was put on top of the previously unloaded bundle. The top bundle apparently rolled down onto the dorsum of Mr Bourke’s right foot. He was wearing steel cap boots at that time.”
The history goes on to say Mr Bourke continued with his normal work, did not seek medical review or require time off work, and walked with a right sided limp for a week, which then settled. It then describes increasing pain in the right foot in 2006. It notes a past history of work related injury to the right foot on 15 July 1981, and refers to the “work first aid sheet” for details of what occurred.
On causation, Dr Wallace says “Mr Bourke’s right foot disability has been caused by work injuries in the course of his employment with BHP Transport in the 1980’s”. However the ‘Diagnosis’ passage in the report refers to only the injury on 28 June 1986, said to have caused a “crush injury, right foot”, and “Subsequent development of osteoarthritic degeneration, MTP joint, right great toe.”
Mr Bourke’s statement dated 3 December 2008 describes ongoing pain in the right foot after the injury on 28 June 1986. Of the injury on 7 October 1984 he says “I recovered 100% in a day or two. It was only a minor injury.” The statement does not refer to the incident on 15 July 1981. Mr Bourke’s claim form dated 1 June 2008, in respect of the incident of 28 June 1986, refers to the earlier injury on 7 October 1984 as a “Very minor injury to big toe”.
BHP’s medical case on causation was a report of Dr Bornstein, an orthopaedic surgeon dated 18 September 2008. Dr Bornstein recorded that Mr Bourke did “not really remember” right foot injuries prior to that in 1986. Dr Bornstein recorded a history that after the 1986 injury “it settled down to a dull ache for a few months before settling down further over a period of around three to four months”. He recorded the steel cap of the boot “apparently was not damaged”, and “he was able to continue using the same pair of boots”.
Dr Bornstein thought Mr Bourke’s symptoms “quite typical of primary osteoarthritis of the first metatarsophalangeal joint”. He described the appearances in the x-ray of 11 January 2007, in addition to demonstrating osteoarthritis, as being “suggestive of possibly an old flake fracture which has failed to unite”. He thought the fracture more likely occurred in the 1984 incident, as if it had occurred in the 1986 incident, he would have expected the steel cap boot to be damaged to the point of requiring replacement. Additionally, he thought it unlikely, if the injury was to the instep and lower shin (as recorded in the injury book), that the coil also would have damaged the metatarsophalangeal joint. Dr Bornstein thought the osteoarthritis was constitutional in any event, rather than being a result of the incidents in 1984 or 1986. There is no indication Dr Bornstein was made aware of the 1981 injury.
The Reasons Argument
The Arbitrator (apparently) accepted the opinion of Dr Bornstein that, of the two pleaded injuries, that on 7 October 1984 was the more likely cause of the fracture. The Arbitrator then concluded that fracture led to the subsequent arthritic condition in the right foot. This is generally consistent with the opinion of Dr Wallace that the fracture led to “subsequent development of osteoarthritic degeneration”. The Arbitrator gave no indication of why, having preferred the opinion of Dr Bornstein regarding the cause of the fracture, he then preferred the opinion of Dr Wallace regarding the causal link between the fracture and the later arthritic condition. He did not specifically prefer the view of one or other of these orthopaedic surgeons, on either of the causation issues to which I have just referred. He did, in accepting the causal link between the old fracture and the later osteoarthritic condition, say “There is nothing unusual in the idea that arthritis is a progressive medical condition which can take time to manifest.”
The arbitrator did not, in his reasons, refer to Mr Bourke’s statement that he recovered from the 1984 incident in a day or two. He also did not refer to the foot injury in 1981, which (on the contemporaneous documentation) appeared to be the most serious. It was the only one of the three, associated around the time of its occurrence, with medical treatment or time loss.
There is a statutory duty to give reasons contained in section 294 of the 1998 Act. That duty is expanded upon in Rule 15.6 of the Workers Compensation Commission Rules 2006, which provides:
“(1) A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a) the Commission’s findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c) the reasoning processes that lead the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
In Hume v Walton [2005] NSWCA 148 McColl JA at [69] said:
“The primary judge’s duty was not only to record the evidence but also to record the findings she made based on that evidence: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. While the extent of that duty may depend upon the circumstances of the individual case (ibid), where there is disputed expert evidence, the ‘parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other’: Archibald v Byron Shire Council[2003] NSWCA 292; (2003) 129 LGERA 311 at [54] per Sheller JA (with whom Beazley JA agreed); see also Bright v Joodie Holdings No 2 Pty Ltd[2005] NSWCA 134 at [33] per Santow JA (with whom Sheller JA and Campbell AJA agreed).”
In Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 Hayne J at [131] said:
“The primary judge's reasons stated his conclusion that the evidence of Dr Trevithick was to be accepted and preferred to that of other evidence but disclosed no reasoning supporting that conclusion. No analysis was made of the competing evidence and no explanation proffered for rejecting it. The most that might be inferred from what was said was that some special significance was attached to the existence of the written record upon which Dr Trevithick founded his oral evidence. But what significance was to be attached to the existence of that record might well be thought to have turned critically upon the source or sources of the information recorded in it. That was not a matter examined in the reasons. The absence of explanation for, and reasoning in support of, the conclusion expressed in the primary judge's reasons reveals that the process of fact finding miscarried. It miscarried because, so far as the reasons reveal, no examination was made of why Dr Trevithick's evidence was to be preferred to that of other witnesses.”
In The Nominal Defendant v Kostic [2007] NSWCA 14 at [59] Ipp JA said:
“Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his or her findings as to how he or she comes to accept the one over the other.”
In my view it is tolerably clear the reasons on this issue are insufficient. They fail to refer to obviously relevant evidence (such as Mr Bourke’s statement that he recovered from the 1984 incident). They do not, in any sufficient way, engage with the competing medical cases, and reveal why Dr Bornstein’s evidence was preferred on one aspect, and Dr Wallace’s on another. The appeal ground that the reasons were inadequate is made out.
Review of the Findings
It is unnecessary, in reviewing the arbitrator’s decision, that I find error as a precondition for intervention: Sapina v Coles Myer Limited [2009] NSWCA 71 at [55]. If I conclude the arbitrator’s decision was not the true and correct view, I should substitute my own view, or in an appropriate case, remit the matter: State Transit Authority of New South Wales v Chemler [2007] NSWCA 249, (2007) 5 DDCR 286 at [30]. However the existence of demonstrated error is persuasive: Cook v Midpart Pty Limited t/as McDonalds & Anor [2008] NSWCA151, (2008) 6 DDCR 316 at [10].
There is no real contest as regards the occurrence of the pleaded incidents on 7 October 1984 and 28 June 1986. The issue rather is whether there is a causal relationship between either of those incidents, and the symptoms in the right foot from which Mr Bourke now suffers. In addition to the views of the medical experts, I am entitled to rely on a “commonsense evaluation of the sequence of events”, and to make commonsense findings that are within “the realm of common knowledge and experience”: Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42, (2005) 2 DDCR 271 at [90] and [91], and the cases cited therein. It is appropriate to approach the causation issue in the light of the frequently cited passage in Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452 at 463G to 464A:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase "results from", is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death "results from" a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death "results from" the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
Both Dr Bornstein and Dr Wallace make a diagnosis of arthritis in the metacarpophalangeal joint of the right great toe. Dr Bornstein specifically relates the foot symptoms to that arthritic condition, Dr Wallace by inference does. There are two factual issues. Can Mr Bourke establish on the probabilities that the fracture, observed by both Dr Bornstein and Dr Wallace in the X-ray dated 12 January 2007, occurred in either of the pleaded foot injuries? If so, does the arthritic condition result from the earlier fracture?
I am not satisfied the fracture occurred in the incident on 7 October 1984. Mr Bourke’s statement dated 3 December 2008 specifically says that incident was a minor injury, requiring no time off work, and that it “recovered 100% within a day or two”. Previously, when Mr Bourke had seen Dr Wallace on 15 February 2008, he was unable to recall that incident at all. There was a single reference to the incident in the contemporaneous material, a report on the date it occurred. This is consistent with Mr Bourke’s recollection of the incident (and its immediate sequelae) as recorded in his statement. The claim form dated 1 June 2008 describes the 1984 incident as “very minor”. In giving evidence, Mr Bourke dated his ongoing foot symptoms from the incident on 28 June 1986, not that in 1984. The lack of recorded medical treatment, and lack of time off work, following the incident on 7 October 1984, may be contrasted with the earlier incident in 1981.
The only medical opinion to the effect that the fracture occurred in 1984 is that of Dr Bornstein. Dr Bornstein considered the mechanics of the 1986 incident (including the lack of major damage to the steel capped boots) were inconsistent with the fracture occurring on that occasion (see his report at pages 2.5 and 3.7). Dr Bornstein only had a history of the two incidents, in 1984 and 1986, and appears to have thought 1984 was the more likely of these two. There is no indication Dr Bornstein had a history of, or was otherwise aware of, the incident in 1981. To this extent, the assumptions on which Dr Bornstein prepared his report did not provide a fair climate, for an opinion on the likelihood of the fracture occurring in the 1984 incident (see the authorities recently reviewed in Department of Aging, Disability & Home Care v Fenwick [2009] NSWWCCPD 104 at [23] to [[26]). Dr Bornstein’s report was deprived of weight on this particular point.
Applying a commonsense evaluation of the sequence of events, I am not persuaded on the probabilities that the fracture occurred in the incident on 7 October 1984.
Neither am I persuaded the fracture occurred in the incident on 28 June 1986. Dr Wallace recorded a history of that incident, after which “He did not seek medical review at that time or require time off work. He continued work at normal duties and noted a right sided limp for a week, which then settled.” Dr Bornstein recorded a history:
“He reported to First Aid where a cold compress was placed onto the foot and he was told that there was nothing really that could be done for it. The foot was painful. He limped around at work for a week. He did not take any time off. He stated that it settled down to a dull ache for a few months before settling down further over a period of around three to four months.”
In his statement dated 3 December 2008 Mr Bourke said “I continued to work. In the beginning the foot was extremely painful and I could hardly walk for two or three weeks. The pain eventually eased to a continuous dull ache.”
Like the incident in 1984, that in 1986 involved no medical treatment, and no time off work. Dr Bornstein has raised a specific issue regarding the nature of the injury, and whether it was likely to have caused a fracture of the right great toe, given the lack of significant damage to Mr Bourke’s safety boots, and the reference in the injury book entry to injury to the instep and shin. When cross-examined about this incident Mr Bourke denied he complained about pain in the shin at the time (T2.45). Given the passage of time since the foot injuries in the 1980’s, and Mr Bourke’s patchy recollection of those incidents, I would regard the contemporaneous entry in the injury book as more reliable.
This raises the question of whether the Arbitrator made a credit finding, having heard Mr Bourke give evidence, and if he did, what approach I should take to that. In Mr Bourke’s supplementary submissions on BHP’s appeal, it is submitted “the arbitrator saw the first respondent (Mr Bourke) cross-examined and clearly accepted him as a witness of truth.” If a conflict in evidence had been resolved by the Arbitrator assessing oral testimony, it would be necessary that I approach such finding “in a manner similar to that described in Fox v Percy [2003] HCA 22; 214 CLR 118” (‘Fox v Percy’): Tan v National Australia Bank Limited [2008] NSWCA 198.
At [5.2] and [5.3] of his reasons the Arbitrator set out aspects of the evidence, going to the issue of which of the incidents was causative of the right foot fracture. He referred to the reports of Drs Wallace and Bornstein, and the injury book notation for 7 October 1984. He noted it was the incident of 28 June 1986 “that was the focus of the first respondent’s cross-examination”. After referring to the documentary evidence, in particular Dr Bornstein’s report, at the conclusion of [5.3] the Arbitrator said “The cross examination did not take the matter any further than what has been stated above.” The ultimate finding of fact on this issue was at [5.4] where the Arbitrator said:
“I believe, in the totality of the evidence and history, and on the balance of probabilities, that the incident/injury to Mr Bourke’s right toe that has lead to his current arthritic condition occurred on 7 October 1984 and not the incident of 28 June 1986.”
Other than noting the incident of 28 June 1986 was the focus of cross-examination, the Arbitrator made no specific reference to the evidence of Mr Bourke, either its contents, or the manner in which it was given. He did not say that he accepted or rejected any part of it. He made no finding on credit. It is appropriate that I reason to a conclusion “as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events”: Fox v Percy. Such a process is consistent with the conclusion I expressed at [52] above.
Preferring, as I do, the evidence in the injury book entry going to the location of symptoms on 28 June 1986, this raises the question identified by Dr Bornstein, regarding whether the mechanics of that injury were consistent with a fracture of the right great toe occurring at the time. The injury book entry does not suggest any particular injury to the great toe. It is the instep and lower shin that are particularly mentioned. Dr Bornstein’s point about the safety boot also is a valid one. If the right foot in the vicinity of the great toe were crushed, with sufficient force to cause a fracture, one would expect damage to the steel capped safety boot. Dr Bornstein recorded a specific history that “he was able to continue using the same pair of boots”. Dr Wallace’s report is silent on these issues. Having regard to the evidence as a whole, including the lack of medical treatment, lack of time off work, the inconsistency regarding location of symptoms on the day, the lack of any subsequent attendances at first aid around the time, and lack of any serious damage to the steel capped boot, I am not satisfied the fracture occurred on 28 June 1986. I prefer the opinion of Dr Bornstein on the issue of whether the fracture occurred in that incident.
Mr Bourke submits that as each of the three known incidents occurred at work, it does not matter which of them caused the fracture, one way or the other it results from one of the work injuries referred to above, and is compensable. The difficulty with this argument is that the incident on 15 July 1981 was not pleaded. Although a claim form had been lodged in respect of it shortly after its occurrence, no subsequent claim for weekly or other benefits had been made in respect of it. It was not mentioned in the Application to Resolve a Dispute lodged by Mr Bourke. Sections 289 and 289A of the 1998 Act would have prevented the claim for compensation in respect of the injury on 15 July 1981 being referred to the Workers Compensation Commission of New South Wales, in the absence of a dispute, or a failure to determine the claim.
In Far West Area Health Service v Radford [2003] NSWWCCPD 10 (‘Radford’) Fleming DP at [24] said “In the informal, less technical environment of the Commission it is not necessary or desirable to rely upon strict pleadings to define the issues between the parties.” However a party is entitled to notice of the nature of the claim against it, and an opportunity to respond: Radford at [34]. The Commission is obliged to act “in accordance with the obligations of procedural fairness and natural justice”: South West Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 (‘Edmonds’) at [91]. It would in my view involve a clear breach of the principles of procedural fairness, if the Arbitrator (or I on appeal) were to find a causative injury that had not been raised in the pleadings (or other documents that assisted in defining the issues between the parties), and to which BHP had not had an opportunity to respond.
BHP’s medical case, in the report of Dr Bornstein, dealt with the two incidents that had been raised in the pleadings (the incidents in 1984 and 1986), but not that of 1981. It is, in the proceedings as they are now pleaded, impossible to properly make a finding that the fracture occurred in the 1981 incident. The incident in 1981 clearly had the most significant consequences at the time of its occurrence.
Dr Wallace thought the arthritic condition affecting the right foot was a consequence of the earlier fracture, Dr Bornstein thought the arthritic condition was constitutional. Given the finding I have made regarding the fracture, the claim in respect of the right foot must fail in either event.
It follows from the above that I have concluded the Arbitrator’s decision was not true and correct, in respect of the right foot injury pleaded against BHP. BHP is entitled to an award in its favour.
BlueScope’s Appeal
BlueScope appeals only in respect of the finding that it is liable to contribute 30% of the weekly award entered in Mr Bourke’s favour. BlueScope was the employer at the time of the left shoulder injury on 9 November 1996. It submits the Arbitrator’s reasons were inadequate, and failed to demonstrate the reasoning that led him to this apportionment. BlueScope’s submissions refer to the following specific matters it asserts are inconsistent with the apportionment against it:
(i) Mr Bourke resumed his normal pre-injury duties subsequent to the left shoulder injury, and continued these until his employment with BlueScope ended on 8 May 2002. He then continued in his normal pre-injury duties, but in the employ of Toll, until his last injury on 19 May 2005.
(ii) Medical evidence from Drs Balgi and Mill indicated Mr Bourke’s incapacity resulted from his back and right shoulder injury on 19 May 2005.
(iii) Mr Bourke wrote to Toll on 10 June 2007, saying his unfitness resulted from his right shoulder and back injury, rather than his left shoulder injury in 1996.
(iv) In further submissions dated 16 July 2009, after transcript was available, BlueScope referred to its submissions at the arbitration hearing. It submitted the Arbitrator “failed to evaluate the role that ongoing heavy work played in aggravating any pre-existent condition or to take into consideration the expert medical evidence in this regard.”
Although BlueScope states it appeals only in respect of the Arbitrator’s apportionment, one of the orders it seeks (in the alternative) is that there be an award in its favour on the claim for weekly payments. This would be consistent with a submission that incapacity did not result from the injury in its employ in 1996.
The Arbitrator set out the evidence against BlueScope at [5.5] and [5.6] of his reasons. He referred to the earlier history, leading to the consent award for 20% loss of use of the left arm in 2003. He noted Mr Bourke said he had never been pain free in the left shoulder after the 1996 injury, that Mr Bourke is left hand dominant, and that Mr Bourke’s statement dated 20 November 2008, and the further permanent loss assessed by Dr Wallace in 2007 “strongly suggest that there is continuing contribution to his incapacity for employment caused by the current condition of his left shoulder”.
The Arbitrator’s conclusions regarding incapacity, and the respective contributions to it, are set out at [5.9] and [5.12] of his reasons. Relevantly at [5.9] the Arbitrator found:
“I believe that Mr Bourke has made his claim for continuing weekly payments of compensation and that the three Respondents are collectively liable to contribute to the weekly payments due to the different frank injuries as outlined. Mr Bourke still suffers incapacity as a result of progressing arthritis to his right big toe, his left and right shoulder injuries and the continuing injury to his lumbar spine.”
The Arbitrator then at [5.9], [5.10] and [5.11] made findings relevant to incapacity and quantification of Mr Bourke’s entitlement pursuant to section 40 of the 1987 Act. These findings are not challenged. At [5.12] the Arbitrator continued:
“For the First Respondent I believe that the foot/toe injury would contribute no more than 10% overall to Mr Bourke’s incapacity. For the Second Respondent I believe that the left shoulder injury contributes no more than 30% overall to Mr Bourke’s incapacity. That leaves 60% overall contribution to the Third Respondent for the continuing effects of Mr Bourke’s right shoulder and lower back injuries. I so find.”
The matter was not conducted on the basis of the ‘disease’ provisions of the 1987 Act, and the ‘injury’ findings made by the arbitrator were of injury simpliciter. BlueScope does not challenge such findings on appeal. The apportionment of liability between the employers was pursuant to section 22 of the 1987 Act. Sections 22 and 22A relevantly provide:
“22. Compensation to be apportioned where more than one injury
(1) If:
(a) the death or incapacity of a worker, or
(b) a permanent impairment suffered by a worker as referred to in Division 4 of Part 3, or
(c) a liability under Division 3 of Part 3 to a worker, results from more than one injury to the worker, liability to pay compensation under this Act is to be apportioned in such manner as the Commission determines.
(1A) Death, incapacity, loss or liability that results partly from one injury and partly from one or more other injuries is taken to have resulted from more than one injury.
(2) Liability to pay compensation under this Act includes:
(a) the liability of an employer (including an employer who is a self-insurer), and
(b) the liability of an insurer under a policy of insurance in respect of the payment of that compensation (including a direct liability to the worker), and
(c) a liability in respect of a claim under Division 6 of Part 4, and
(d) in the case of a worker who is partially incapacitated for work, a liability that arises because the worker is entitled to be compensated under this Act as if totally incapacitated.”
“22A. Further provisions concerning apportionment of liability under section 22
(1) The apportionment of liability under section 22 is:
(a) in the case of the apportionment of liability between employers—to be on the basis of the relative length of the worker’s employment with each employer concerned (not including any period of employment after the last relevant injury was received), or on such other basis as the Commission considers just and equitable in the special circumstances of the case…”
The authorities previously referred to above, on the duty to give reasons, are relevant to whether the Arbitrator gave adequate reasons in respect of apportionment. The passages quoted above relate particularly to circumstances where there are competing cases based upon expert evidence. More generally, I note McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 said:
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given…”
The Arbitrator’s reasons on apportionment are not, in my view, sufficient. Section 22A sets out an approach to apportionment between employers, on a time basis, that can be departed from in an appropriate case. The reasons did not refer to section 22A. The apportionment was not based upon the relative length of employment with each employer concerned – it is apparent it must have been on a ‘just and equitable’ basis. The reasons are silent on why the Arbitrator approached the apportionment issue in this way. The reasons also are relatively silent as regards why the Arbitrator adopted the proportions he did, in apportioning. The reasons do not satisfy the requirements set out in the authorities quoted above.
As stated at [44] above, error is not a precondition to intervention on appeal pursuant to section 352, but demonstrated error is persuasive.
The application of sections 22 and 22A was considered by the Court of Appeal in Sutherland Shire Council v Baltica General Insurance Co Ltd & Ors (1996) 12 NSWCCR 716 (‘Baltica’). Clarke JA said the insertion of section 22(1A) had widened the meaning of the expression “results from more than one injury”. His Honour at 727A said:
“What is involved in the wider test introduced by section 22(1A) is an enquiry whether the incapacity was so connected with a number of injuries that, as a matter of ordinary commonsense and experience, it should be regarded as having resulted partly from all or any of them”
If this “question is answered in the affirmative the apportionment exercise will need to be carried out”: Baltica at 727D. The statement by Clarke JA at 730G-731B, of the causation test to be applied, is also of relevance to the current facts:
“…I do not think there is any impediment to my acceptance of the view that the common law test applies and that the relevant enquiry directs attention to whether the injury caused or materially contributed to the incapacity. Accordingly, the approach evident in Morris v George, which reflected the restrictions imposed by the search for a proximate cause or direct cause, should, in my view, no longer be regarded as sound.”
I have already found that BHP is entitled to an award in its favour. Apportionment is unavailable, if BlueScope’s argument that it has no liability for the weekly award is accepted, so it is appropriate to deal with this argument first.
The earlier sequelae of the 1996 left shoulder injury, leading to the consent award in 2003, are set out at [3] and [4] above. Mr Bourke’s statement says “Since the settlement in early 2003 I continued to have left shoulder pain. The pain never went away. In fact it only increased.”
Dr Goldberg’s report dated 15 June 2006 describes Mr Burke returning to him at that time with “both shoulders wasted and globally tender. Movements were limited on both sides and there was loss of power. The impingement sign was bilaterally positive.” “An MRI of the left shoulder confirmed a full thickness tear of supraspinatus and rotator cuff impingement.” Dr Goldberg performed surgery (described at [6] above) on the left shoulder on 28 November 2006. Dr Goldberg’s report dated 7 June 2007 described the left shoulder as “improving though it is not quite perfect”. There was continued tenderness about the rotator cuff. Dr Goldberg imposed a lifting restriction of five kilograms, with no overhead work. He suggested Mr Bourke should be “retrained to a job in a supervisory capacity or one driving. Certainly he should not return to a job that involves heavy lifting again.”
Dr Goldberg’s last report is dated 6 September 2007. On review of Mr Bourke’s shoulder (I infer the left) he found he was “virtually asymptomatic though he does get very occasional discomfort from time to time.” There was “minimal tenderness, near full movement and good power.” He recommended use of the arm “within the limits of his discomfort. I would still recommend permanent clerical work only.”
Dr Wallace examined Mr Bourke on 3 August 2007. He recorded the left shoulder symptoms as “global aching pain about the joint radiating intermittently to the radial aspect of the left arm to the level of the elbow. The pain is worse on lifting, bending or twisting movements or any prolonged activity and is relieved by rest.” Dr Wallace placed a range of work restrictions on Mr Bourke, without differentiating clearly between those that flowed from different body parts. He thought him unfit for the full duties of a stevedore, and best suited to retraining for light physical or clerical duty up to thirty hours per week.
Dr Ho examined Mr Bourke at the request of Toll, on 3 September 2007. In respect of the left shoulder he recorded “he still has some pain although it is much better than before. He still has restricted use of the left shoulder although he is much better in terms of pain but the shoulder still remains weak.” Both shoulders demonstrated “global wasting”. Dr Ho thought Mr Bourke unfit to return to pre-injury duties due to a combination of the low back and bilateral shoulder problems. He noted “Both shoulders are not strong and they are stiff. He is not able to do above shoulder movements and lifting activities would be restricted.”
Mr Bourke’s statement describes the left shoulder problems, after the 2006 surgery, at [16] to [22]. He describes ongoing aching, restricted movement and weakness in the left shoulder. There is pain on reaching or extending the left arm for long periods.
‘Partial incapacity’ has been described as “that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work.”: Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171. In Holden v Toll Chadwick Transport Ltd (1987) 8 NSWLR 222 the Court of Appeal at 229E found partial incapacity where:
“He was suffering a physical incapacity for work generally, being work in the class in which he had been engaged or in which he might reasonably be expected to engage in the future.”
The above passages are generally consistent with the recent decision of the Court of Appeal in Ric Developments t/as Lane Cove Poolmart v Muir [2008] NSWCA 155, (2008) 71 NSWLR 593.
Mr Bourke had been a stevedore from 1968 until 2005. His duties are described in Dr Wallace’s history, in the report dated 2 April 2008, as involving “moving mainly steel cargo, including foils and slabs. He was required to lift heavy chains, weighing up to 46 kgs. He worked both on the wharves and on ships.” On the evidence overall, it is clear Mr Bourke is unfit to work in his previous occupation as a stevedore, or in many other jobs that might normally be available to a man with a background in physical labour. It is also clear, given the restrictions placed upon him by the medical witnesses, that the problems in his left shoulder are part of the reason for this. I particularly accept the views of the treating orthopaedic surgeon, Dr Goldberg, as regards the limitations placed upon Mr Bourke by his left shoulder injury.
To apply the passage from Baltica quoted at [71] above, the incapacity is connected with the left shoulder injury suffered in 1996, and the back and right shoulder injury found to result from the incident in 2005. As a matter of commonsense and experience, the incapacity should be regarded as resulting in part from these injuries.
BlueScope does not specifically challenge the finding that the left shoulder symptoms resulted from the incident in 1996. However it does, in its supplementary submissions, assert that the Arbitrator “failed to evaluate the role that ongoing heavy work played in aggravating any pre-existing compensable condition or to take into consideration the expert medical evidence in this regard.”
The Application to Resolve a Dispute against BlueScope alleged only the left shoulder injury on 9 November 1996. That against Toll alleged injury to the right shoulder, arm and back on 19 May 2005. If the thrust of the supplementary submission, referred to in the preceding paragraph, is that the general nature of the work with Toll was partly responsible for the left shoulder problem, and that this should have been a factor in apportionment, this would be outside the pleadings. Mr Bourke did not allege his left shoulder problems resulted from anything other than the specific incident in 1996 with BlueScope.
The reference to expert medical evidence is probably a reference to the report of Dr Evans dated 24 June 2002, in which Dr Evans opined that Mr Bourke’s ongoing duties at that stage were “likely to cause further damage to his left shoulder”. This was approximately three years prior to when Mr Bourke concluded his employment as a stevedore. The proposition that the injury to the left shoulder was partly caused by the general nature of the work up to 2005 is not adopted by the doctors who examined Mr Bourke from 2005 onwards, in respect of the left shoulder, whose reports have featured in the evidence (Drs Wallace, Goldberg and Ho). Whilst Dr Ho recorded a history of onset of problems in both shoulders on 19 May 2005, he regarded the ongoing complaints in both the back and shoulders as constitutional, the effects of aggravation having ceased. Dr Wallace thought the left shoulder problems resulted from the 1996 injury. Dr Goldberg does not comment in any detail on causation, but does not suggest later left shoulder problems are other than due to the 1996 left shoulder injury of which he was originally given a history, in late 1996.
I prefer the evidence of Drs Wallace and Goldberg to that of Dr Ho, on the issue of whether a stage had been reached where Mr Bourke’s left shoulder symptoms were attributable solely to constitutional causes. I note BlueScope previously consented to pay a sum pursuant to section 66 of the 1987 Act in 2003, in respect of 20% loss of use of the left arm at or above the elbow. I note BlueScope paid for the further surgery to the left shoulder in 2006 (see its letter to Mr Bourke’s solicitors dated 19 October 2006). These matters are entitled to weight as admissions. Additionally, the following passage from the judgment of Santow JA in Nominal Defendant v Clancy [2007] NSWCA 349 at [8] is relevant:
“The trial judge’s finding on causation, is supported by the well-known principle in Watts v Rake [1960] HCA 58; (1960) 108 CLR 158. In particular it was for the appellant to satisfy the evidentiary onus upon it of disentangling the accident from other potential causes of the respondent’s condition of her right shoulder, so as to exclude altogether the operation of the accident as a contributory cause (Watts v Rake (supra) per Dixon CJ at 160).”
This, in my view, BlueScope cannot do, either as regards whether the left shoulder condition became a purely constitutional one (in accordance with Dr Ho’s view), or whether it became a condition caused by the later work with Toll. Applying the passage from Baltica quoted at [71] above, it is sufficient if the injury with BlueScope in 1996 materially contributed to the incapacity. On the evidence overall, it clearly did.
Accordingly I am satisfied it is a matter where apportionment of the weekly award is available, pursuant to section 22.
Cases involving multiple employers, where apportionment is sought, will frequently involve a series of injuries, to the same body part. It will often be difficult to disentangle the relative contribution of each such employment, to a worker’s ultimate incapacity. The ‘time’ formula in section 22A(1)(a) provides a convenient method of apportionment in such circumstances.
In the current matter, it has been found the injury in 1996 resulted in symptoms in the left shoulder, and the injury in 2005 resulted in symptoms in the lower back and right shoulder. On the findings, there were two frank incidents, each causing different symptoms. As a result, Mr Bourke has an incapacity for work. In my view the fairer approach to apportionment is to approach it on the basis of what is just and equitable in the circumstances of the case. In HIH Workers Compensation (NSW) Pty Ltd v GIO General Ltd (2000) 21 NSWCCR 108 Campbell CJ approached the issue of apportionment by looking to the extent to which the different injuries had contributed to the ultimate outcome. Such an approach in my view is appropriate in the current case.
The extent of the contribution by the left shoulder injury, to incapacity, is discussed at [74] to [83] above.
Dr Goldberg’s report dated 15 June 2006 said an MRI of the right shoulder had shown “a partial tear of supraspinatus and rotator cuff impingement”. Dr Goldberg diagnosed “chronic impingement on the right side”. Dr Wallace’s report dated 6 September 2007 sets out the complaints at that stage in respect of the right upper limb and back. There was global aching around the right shoulder, the pain was worse on overhead activities, lifting, bending or twisting. There was weakness in the right arm, and stiffness in the shoulder. Dr Wallace diagnosed a rotator cuff tear of the right shoulder. Dr Wallace’s work restrictions (referred to at [77] above) did not differentiate between those flowing from the different injuries. The short reports of that date concluded there was a right upper limb impairment of 7%, and a loss of the left arm at or above the elbow of 25%. The first of these is assessed applying ‘AMA Guides, Edition 5’, the second is not, so some caution would be required in using these assessments as a basis for comparison of the relative seriousness of the shoulder injuries.
Mr Bourke’s statement of 3 December 2008 described his right shoulder problems:
“I have a constant, slight aching pain in my right shoulder. The pain depends on what activity I am doing. The more activity the more pain I have. I have difficulties such as driving and lifting.
When Dr Ho examined Mr Bourke on Toll’s behalf on 3 September 2007, Mr Bourke complained of the right shoulder being sore and stiff. It demonstrated “global wasting” (like the left), the right shoulder was a bit stronger than the left. Movements of both shoulders were “more or less symmetrical”. He thought the shoulders were “more or less similar” at that time, and did not think the right shoulder warranted surgery.
Dr Mill treated Mr Bourke after the 2005 injury. On 25 July 2005 he recorded “His shoulder gave only occasional pain and it was not restricting his activities”. There is also a report from Dr Kirychenko of the same practice, dated 25 January 2007. Dr Kirychenko appears to have confused which shoulder was the subject of surgery, and his report is not in the circumstances helpful.
When Dr Wallace examined Mr Bourke on 3 August 2007 he recorded “pain about the L5 spinous process with no radiation to his lower limbs. The pain is worse on lifting, bending or twisting movements, driving, sitting or maintaining one position and is relieved by walking, exercise or hydrotherapy.” X-rays taken on 6 March 2007 demonstrated “mild facet joint degeneration at the lower two lumbar levels”. On the ‘AMA Guides, Edition 5’ Dr Wallace assessed 8% whole person impairment in respect of the back injury.
Dr Ho recorded Mr Bourke “always complained of pain in the low back on the left-hand side. There was no radiation of pain or neurological symptoms in the lower limbs. The back remains stiff and sore.” He diagnosed lumbar spondylosis. On the topic of work capacity Dr Ho said:
“I do not believe he can return to pre-injury duties. He has a stiff and sore back and he is not fit to do repetitive bending and twisting. Both shoulders are not strong and they are stiff. He is not able to do above shoulder movements and lifting activities would be restricted.”
Dr Mill, as at 25 July 2005, recorded Mr Bourke’s back had “now returned to its pre-injury level”. This is effectively a conclusion that the symptomatic effects of the 2005 aggravation had ceased by that time. This is inconsistent with the finding the Arbitrator made as regards causation of the back symptoms, and that finding is not the subject of challenge in this appeal. Dr Mill at that time was still placing restrictions on Mr Bourke, to the extent he thought Mr Bourke could trial normal duties, but that he should change or cease any activities that increased his pain.
BlueScope’s submissions on this appeal specifically refer to a letter from Mr Bourke to the insurance unit of Toll dated 10 June 2007. In that letter Mr Bourke requests that Toll make weekly payments of compensation to him, and states “My left shoulder operation and recovery is no longer the reason for my unfit condition to work. As from 7.6.07 the reason I am unable to work is due to my injuries to right shoulder and lower back.”
The specialist medical evidence overall, from both Dr Wallace and Dr Ho, is consistent with the proposition that Mr Bourke’s symptoms in his lower back and right shoulder would have been sufficient to incapacitate Mr Bourke for his pre-injury occupation as a stevedore. Mr Bourke had had a reasonably good result from the surgery to his left shoulder. However Dr Goldberg’s report dated 7 June 2007 puts a lifting restriction on him of five kilograms, says he should not do overhead work, states “he should not return to a job that involves heavy lifting again”, and recommends retraining in supervisory or driving work. Dr Goldberg’s report dated 6 September 2007 recommends “permanent clerical work only”. It is apparent that that report is focussing on the left shoulder condition, by way of follow up to the surgery.
The contents of Mr Bourke’s letter dated 10 June 2007 must be assessed in conjunction with the other evidence. On the evidence overall, in particular Dr Goldberg whose views I accept, I am satisfied Mr Bourke’s incapacity results from the left shoulder injury, as well as the right shoulder and lower back injuries.
BlueScope’s submissions also place emphasis on the fact that Mr Bourke was able, some months after the 1996 injury, to resume his normal duties as a stevedore, which he carried out until the last injury in 2005. Whilst this is true, it is clear Mr Bourke did not make a recovery from the left shoulder injury. In 2002 he told Dr Evans he had to be careful when working. There was mild wasting of the left upper arm and shoulder. There was pain on elevation of the arm, or carrying a shopping bag in the left hand. Movements were reduced. Dr Evans thought Mr Bourke’s duties as a stevedore were unsuitable for him, notwithstanding he was still carrying them out at that time. In February 2003 BlueScope agreed to pay lump sum compensation based upon a 20% loss of use of the left arm at or above the elbow.
Applying the passage from Baltica quoted at [72] above, it is not appropriate to look to the proximate cause of the incapacity. The enquiry is a wider one. The fact that Mr Bourke was able to work on for a time, with symptoms in his left shoulder, is not inconsistent with the conclusion, based on the evidence overall, that incapacity results from both the left shoulder injury in 1996, and the injury to the lower back and right shoulder in 2005.
In looking at the extent to which the different injuries contributed to the ultimate outcome (the partial incapacity), the contribution of the last injury is in my view greater than that of the left shoulder injury. In particular I note that, although Dr Goldberg was of the view Mr Bourke was now restricted to permanent clerical work as a result of the left shoulder injury, the outcome of the surgery was relatively successful, and as at September 2007 Mr Bourke had very occasional discomfort, minimal tenderness, near full movement and good power.
The Arbitrator originally apportioned 10% to the right foot injury, 30% to the left shoulder injury, and 60% to the injury to the lower back and right shoulder. An award is now to be made in favour of BHP in respect of the right foot injury. It is not available to be apportioned against. Any contribution of the right foot injury to Mr Bourke’s incapacity would not have been great in any event. It is appropriate, in my view, to apportion the liability to pay the weekly compensation awarded to Mr Bourke, in the proportions one third: two thirds, with the greater proportion to be paid by Toll.
I note the basis on which the arbitrator made orders in respect of payment of medical and like expenses, pursuant to section 60 of the 1987 Act, was not the subject of challenge.
DECISION
The decision of the Arbitrator dated 25 May 2009 is amended as follows:
(i) Delete paragraph [1] in its current form, and substitute the following:
“1. That the Second and Third Respondents pay the Applicant weekly payments of compensation of $422.20 per week pursuant to section 40 of the Workers Compensation Act 1987 from 1 July 2005 to date and continuing in accordance with the maximum statutory rate for a worker with a dependant spouse. The said weekly payments are to be contributed one third by the Second Respondent and two thirds by the Third Respondent.”
(ii) Delete the sentence “The First Respondent is liable for expenses only in relation to the Applicant’s left great toe.” from paragraph [2].
(iii) In paragraph [4] insert the words “Second and Third” immediately before the word “Respondents”.
(iv) Add the following paragraph: “Award in favour of the First Respondent.”
The balance of the decision is confirmed.
COSTS
I make no order as to costs in respect of BHP’s appeal.
BlueScope is to pay the costs of the other parties in respect of its appeal.
Michael Snell
Acting Deputy President
22 September 2009
I, TUYET WALLIS, CERTIFY THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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