BHP Steel (AIS) Pty Limited v Barbour

[2004] NSWWCCPD 75

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:BHP Steel (AIS) Pty Limited v Barbour [2004] NSW WCC PD 75

APPELLANT:  BHP Steel Pty Limited

RESPONDENT:  Tarek Barbour

INSURER:BHP Steel (JLA) Pty Limited

FILE NUMBER:  WCC14092-2003

DATE OF ARBITRATOR’S DECISION:          23 August 2004

DATE OF APPEAL DECISION:  2 November 2004

SUBJECT MATTER OF DECISION: Weight of evidence; Decision based on logically probative evidence; Rule 70 of the Workers Compensation Commission Rules 2003.

PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President

HEARING:On the papers.

REPRESENTATION:  Appellant:  P K Simpson & Co.

Respondent:   Sparke Helmore Lawyers

ORDERS MADE ON APPEAL:  The decision of the Arbitrator is confirmed.

THE APPEAL

1. BHP Steel (AIS) Pty Limited appeals against a decision that it is liable to pay Mr Tarek Barbour workers compensation by way of weekly benefits.  A Commission Arbitrator gave this decision verbally, immediately following the conciliation and arbitration of this matter on 23 August 2004.

1. BHP argues that the Arbitrator had no evidence for his finding that Mr Barbour’s work as a machine operator at the steelworks, since 1980, was capable of causing an aggravation, exacerbation or deterioration of his back condition.  BHP argues that this finding was based upon speculation or unsubstantiated assumptions about the relationship between the work Mr Barbour performed and the injury to his back.

1. BHP submits that the Arbitrator was wrong to find that Mr Barbour suffered an injury at work on 23 November 2001, as opposed to an injury at home on 24 November 2001.  This finding, says BHP, was based solely on Mr Barbour’s own statement and was unsubstantiated by medical or other evidence.

1. BHP also submits that the Arbitrator went beyond the evidence and formed an opinion based upon his own observations.

1. In reply to the appeal, Mr Barbour argues that the Arbitrator’s decision in relation to his back injury is correct.  He submits that the Arbitrator, while rightly deciding that he had a compensable injury to his back, failed to find that he also had an injury to his neck, as well as carpal tunnel syndrome.  Mr Barbour submits that all three injuries are work related and attract workers compensation.  

1. The amount of compensation at issue on the appeal is more than $5000 and 20% of the amount awarded.  The appeal is also filed within twenty-eight days of the decision being made.  Leave to appeal is therefore granted.

1. The appeal was referred to me for review on 18 October 2004.  It has been expedited because Mr Barbour is seriously ill.

1. 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. 

1. In order to succeed on the appeal BHP must demonstrate that the Arbitrator made an error.  An Arbitrator’s decision should not be disturbed unless, on review, it contains an error of law, fact or discretion (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6). The error must be such that, but for it, a different decision would have been made (YG & GG v Minister for Community Services [2002] NSWCA 247).

Did the Arbitrator err in finding Mr Barbour’s injury arose in the course of his employment?

1. BHP submits that the evidence before the Arbitrator could not support a finding that the work that Mr Barbour was doing was capable of aggravating his back condition.  They argue that there was no expert evidence to support such a finding.  

1. This ground of appeal is not made out.  

1. The Arbitrator’s reasons for decision are set out in the transcript of the arbitration of 23 August 2004.  The Arbitrator gave a careful summary of the relevant evidence.  He correctly identified that whether or not Mr Barbour’s back condition was as a result of solely degenerative spinal disease, or had been contributed to by the nature of his work at BHP, was a material issue to the success of the claim.  He stated (at page 27 of the transcript) that this issue was to be determined by an examination of the evidence of the work that Mr Barbour did, and the history of the onset of his symptoms and incapacity.  The Arbitrator expressly considered the following evidence on this issue;

·     Mr Barbour’s description of the work that he had been performing since commencing with BHP in about November 1980.

·     His specific description of the work he was doing on the Clip-Lok machine on 23 November 2001.

·     Mr Barbour’s description of the onset of his back pain at work on 23 November 2001.

·     Descriptions of the work from Miles Opacic and Mr Trinh including a description of the size and weight of the products that Mr Barbour was working with.

·     The evidence of Mr Johnson who reported no complaint by Mr Barbour at work.

·     The medical evidence of Dr Aloe, which included a history, given to him by Mr Barbour, of lifting heavy iron bars at work during 2001.  

1. The worker also filed a report from Dr Guirgis in January 2002, which refers to the gradual development of symptoms over two years and to the “nature of work pushing on one tonne loads or less while standing with side-twisting”.

1. Unfortunately the Arbitrator does not clearly state which of this evidence he finds most persuasive, and why.  Nor does he clearly state that he accepts the evidence of the worker.  However reading the reasons as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444; Minister for Immigration and Multicultural Affairs v Wu Shu Liang (1996) 185 CLR 259) it is clear that he is persuaded, by the totality of the evidence, that the work Mr Barbour did “involves from time to time moving large and heavy pieces of steel, it involves pushing, it involves twisting”. The Arbitrator did not discount BHP’s evidence, and acknowledged that it suggested Mr Barbour’s work was lighter than claimed by him. The Arbitrator found (at page 30), that the evidence of Dr Aloe, who examined Mr Barbour on 24 November and concluded that he had suffered an ‘injury at work’, was consistent with Mr Barbour’s evidence as to the nature of his work and the onset of his symptoms.

1. Clearly the Arbitrator accepted the veracity of Mr Barbour’s evidence about the heavy lifting involved in his work, and, having reviewed all the evidence, I see no error in the Arbitrator doing so.  The evidence of Mr Johnson, Opacic and Trinh is that the metal sheets were relatively light, and of varying lengths.  The work involved stacking and moving the sheets and involved frequent bending, twisting and lifting.  Mr Barbour worked on different machines over a number of years.  The Arbitrator is entitled to prefer the evidence of Mr Barbour as to the amount and extent of heavy lifting that was involved, and the particular nature of the work that he was doing.  In weighing this evidence against the other accounts of the work, it is for the Arbitrator to determine its relative persuasiveness. 

1. The determination of whether an injury ‘arises out of or in the course of employment’ (section 4 of the Workers Compensation Act 1987) is primarily a question of fact, to be determined in each case. This determination involves a common sense weighing up of the evidence of the nature of the employment and the particular injury. Even if the Arbitrator in this case had erred, in terms of the adequacy of his reasons, I am satisfied that his ultimate findings; that Mr Barbour’s injury ‘arose in the course of his employment’ and that his employment was a ‘substantial contributing factor’ to that injury, were open to him, taking into account all of the evidence.

Did the Arbitrator err in finding that Mr Barbour suffered an injury on 23 November 2001?

1. BHP alleges the Arbitrator’s finding that Mr Barbour suffered an injury on 23 November 2001 at work, as opposed to 24 November at home, was not based on logical and probative evidence.  In support of this claim BHP points to evidence from Drs. Aloe, Smith, Lyons and Matalani, and to evidence of other workers that Mr Barbour did not complain of pain or injury.  In particular, BHP complains that the only basis for finding that the injury occurred on 23 November 2001, at work, is Mr Barbour’s own evidence, which was not persuasive.

1. This ground of appeal is not made out.

1. It was common ground that Mr Barbour did not suffer a frank injury and did not complain of an injury or pain at work on 23 November 2001.  It was also common ground that Mr Barbour reported, on more than one occasion, that he woke up at home on 24 November 2001 with intense pain in his back and ‘couldn’t move’.  Whether he had previously had this pain or incapacity, at work the previous day or on other occasions is in dispute. 

1. The Arbitrator refers, in his reasons, to the report of Dr Aloe dated 25 May 2002, which records a history, given to him by Mr Barbour, of back pain as a result of heavy lifting at work one year earlier.  He found this, plus Dr Aloe’s medical certificate, which recorded the injury as work related, to be persuasive. 

1. Ultimately the Arbitrator found Mr Barbour’s own statement to be persuasive as to the fact that he had felt pain at work on 23 November 2001 that had become worse and was then acute when he awoke the next day.  The Arbitrator accepted that even though Mr Barbour stated to his doctors that the pain came on acutely on the morning of the 24^th it did not necessarily mean that it was also not there on the 23^rd.  Mr Barbour’s evidence was that he experienced pain in the morning of the 23^rd, and was still in pain at lunchtime and when he left work for the day.  This was evidence the Arbitrator was entitled to take into account and, ultimately, find more persuasive than the other evidence going to this point.   The evidence of Mr Barbour and Dr Aloe was logically probative evidence upon which the Arbitrator was entitled to rely.

Did the Arbitrator err in making findings based on his own opinion, not the evidence?

1. BHP alleges that the Arbitrator went beyond the evidence and formed his opinion on the relationship between Mr Barbour’s employment and his injury on the basis of “the general knowledge and experience of the Commission” or his own observations.

1. I accept that some comments in the decision could leave this impression.  However I am not satisfied that they reflect any more than a looseness of language used by the Arbitrator.  The fact that the reasons were given orally, at the conclusion of the hearing, may have contributed to this.  As I have found elsewhere in this review, the relevant findings of fact were based upon a proper assessment of the evidence and discretionary judgement as to their relative probative value.  There is no direct reference in the Arbitrator’s reasons to any reliance upon purported “general knowledge of the Commission”, nor is such an approach appropriate to the determination of the matters that were in issue in this case, i.e. findings on ‘injury’ and ‘substantial contributing factor’.

1. In ICI Australia Operations Pty Limited & 1 Ors v The WorkCover Authority of New South Wales[2004] NSWCA 55 (‘ICI’) the Court of Appeal (McColl JA, Mason P and Meagher JA concurring) referred to “a strong line of authority” that supported the claim that a Judge of the Dust Diseases Tribunal was “entitled to rely upon knowledge acquired as a member of a specialised tribunal” (at paragraph 219). Judges of the former ‘Workers Compensation Commission’ were also entitled to rely upon such knowledge in relation to, for example; conditions of employment and rates of pay (Bryer v Metropolitan Water Sewerage & Drainage Board (1939) 39 SR (NSW) 321); general knowledge of silicosis in order to form an opinion on the facts as they related the disease to injury (Tame v Commonwealth Collieries Pty Ltd (1947) 47 SR (NSW) 269).

1. In ICI, the Court referred to Cross On Evidence where the distinction between:

“. . . ‘general expertise which enables the specialist tribunal to understand quickly the evidence before it and to draw appropriate inferences from the evidence, repeated and specialist knowledge which permits it to assert the existence of a particular fact.’  In the latter case, according to Cross, ‘it is not proper for the tribunal to act upon such specialised knowledge without disclosing it to the parties and affording them the opportunity to rebut it or qualify by argument or by adducing evidence of the existence of that particular fact or by assigning a different significance to it’.”

1. The Commission is a statutory tribunal, not a court (Orellana Fuentes v Standard Knitting Mills Pty Ltd & Anor [2003] NSWCA 146). It has only those powers that are conferred by statute. Section 354(2) of the Workplace Injury Management and Workers Compensation Act 1998 provides that the Commission “is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits”. This does not mean that an Arbitrator may determine a dispute arbitrarily. Rule 70 of the Workers Compensation Commission Rules 2003 states that:

   “When informing itself on any matter, the Commission is to bear in mind the
   following principles:

   (a)evidence should be logical and probative,

   (b)evidence should be relevant to the facts in issue and the issues in dispute,

   (c)evidence based on speculation or unsubstantiated assumptions is unacceptable,

   (d)unqualified opinions are unacceptable.”

2. In my view the circumstances in which an Arbitrator could claim to rely upon the ‘general knowledge of the Commission’ are extremely limited.  As Cross describes, the expertise of the Commission, through its Arbitrators, lies more in the ability to quickly analyse the evidence and draw the appropriate conclusions relevant to the statutory workers compensation framework. The proof of issues such as ‘injury’ and ‘causation’ must be discharged on the basis of evidence that complies with Rule 70. It would not be open to the Arbitrator to find, for example, that the worker suffered pain from an injury arising from the nature of his work, although the evidence was that he did not complain of it, simply on the basis that many people did not complain. Nor would it be permissible for an Arbitrator to find that a worker’s injury was long standing, when the evidence was of sudden onset, simply on the basis that ‘in general’ people did not complain of mild symptoms. These are not matters within the general knowledge of a specialised tribunal, but matters that must be decided on evidence in accordance with Rule 70 of the Commission’s Rules (Wallaby Grip (BAE) Pty Ltd (in Liq) v Macleay Area Health Service (1998) 17 NSW CCR 355). 

1. This ground of appeal is not made out.

Is Mr Barbour entitled to compensation for an injury to his neck and carpel tunnel syndrome?

1. Mr Barbour argues that the Arbitrator has erred in rejecting his claim for an injury to his neck.  The Arbitrator gave brief reasons for rejecting the claim in relation to Mr Barbour’s neck injury.  The reasons were that:  there was no record of complaint to a doctor about neck pain until February 2002; the earliest medical record of neck pain is to Dr Guirgis in January 2002, and the neck pain “is likely to have had an onset at some stage after ceasing work and the worker has not discharged the onus of proving that there has been an injury to the neck”.  

1. The Arbitrator referred (in passing, at page 27 of the transcript), to the fact that “in broad terms, it’s common ground that the applicant has a degenerative neck and back and that his condition is substantially that of degenerative spine issue”.  There is clinical evidence, from x-rays in December 2002, that Mr Barbour has degenerative changes in his cervical spine. 

1. I am satisfied that the Arbitrator did not err in finding that Mr Barbour did not have a compensable injury to his neck.  This finding is consistent with the weight of the evidence that was before him.  The Arbitrator’s reasons do not refer to the whole of the relevant evidence in relation to Mr Barbour’s neck injury, which was:

   ·     Mr Barbour’s statement that “during the years at work I also experienced neck pain” when doing work at BHP.

   ·     Dr Matalani reported a history of pain in the neck developing after November 2001, and gives a diagnosis, in relation to the neck injury, of soft tissue injury and chronic musculoligamentous strain of the neck.  He concludes that the nature of Mr Barbour’s duties at BHP were a substantial contributing factor to his injuries, including his neck injury.

   ·     Dr Stenning reported a history of pain in the neck developing from January 2002. 

   ·     Dr Guirgis reported, in June 2002, a history of neck pain but does not report onset.

   ·     Dr Yiannikas reported, in April 2002, that Mr Barbour “continues to complain of neck pain”. 

   ·     Dr Lyons reported, in August 2002 and November 2003, that neck pain did not develop until some time after Mr Barbour stopped work.

   ·      Dr Aloe reported, in May 2002, that Mr Barbour suffered cervical and lumbar strain.

1. The exercise of the Arbitrator’s discretion as to the weight of the evidence before him should not be set aside unless it has been exercised unfairly or unlawfully.  There was evidence that Mr Barbour suffered a degenerative condition in his cervical spine.  The Arbitrator was entitled to find that the weight of the medical evidence is that Mr Barbour’s neck condition did not become symptomatic until some time after he had finished work and that the neck injury therefore did not arise out of or in the course of Mr Barbour’s employment. 

Is Mr Barbour entitled to compensation for carpel tunnel syndrome?

1. Mr Barbour argues that the Arbitrator has erred in rejecting his claim for carpal tunnel syndrome. 

1. This claim suffers from similar difficulties to the claim in relation to the neck.  There was no history of complaint by Mr Barbour prior to finishing work in November 2001.  Mr Barbour describes his duties at work but does not describe any incapacity arising from an injury to his neck or hands and does not describe any complaint of symptoms.  His first complaint of injury was in relation to his back, on 23 November 2001.

1. The Arbitrator found the medical evidence in relation to the claim of carpal tunnel syndrome not to be persuasive.  Dr Guirgis reports of “symptoms and signs of right and left carpal tunnel syndrome” related to Mr Barbour’s duties at BHP.  Mr Barbour has not had clinical tests to definitively determine the existence of carpal tunnel syndrome. 

1. The Arbitrator has not erred in concluding that the weight of evidence did not support a finding that Mr Barbour suffered carpel tunnel syndrome as a result of his work.

DECISION

1. The decision of the Arbitrator is confirmed.

Dr Gabriel Fleming

Deputy President  

2 November 2004

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE