Bhutta v RailCorp NSW - [2010] NSWWCCPD 108

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Bhutta v RailCorp NSW [2010] NSWWCCPD 108
APPELLANT:		Afzal Bhutta
RESPONDENT:		RailCorp NSW
INSURER:		Self-insured
FILE NUMBER:		A1-377/10
ARBITRATOR:	Ms E Grotte
DATE OF ARBITRATOR’S DECISION:		21 April 2010
DATE OF APPEAL DECISION:		7 October 2010
SUBJECT MATTER OF DECISION:		Causation; effects of head injury; role of AMS; incapacity; weekly payments.
PRESIDENTIAL MEMBER:		Acting Deputy President Anthony Candy
HEARING:		On the papers.
REPRESENTATION:		Appellant:	Law Partners Solicitors & Barristers
Respondent:		Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 21 April 2010 is confirmed.
Each party is to pay his or its own costs of the appeal.

BACKGROUND TO THE APPEAL

Afzal Bhutta (‘the worker’) was a train cleaner employed by RailCorp NSW (‘RailCorp’). On 16 August 2007 shortly after 1 pm while carrying out his duties on a moving double-decker train he fell backwards down a number of steps leading from the upper deck. An ambulance was called and the worker was taken from Central Station to St Vincent’s Hospital where he was X-rayed and observed for a number of hours. A doctor at that hospital, Dr Mobbs, gave the worker a certificate of unfitness for work up to 20 August 2007 because of a soft tissue injury to his lower back and headache. On the latter date the worker obtained a further certificate of unfitness from a general practitioner, Dr Qidwai, whom he had consulted since his regular doctor, Dr Vago, was away. However, the worker did see Dr Vago on 3 September 2007 and from that time Dr Vago has furnished him with medical certificates as to his unfitness for work because of head, back and neck injuries. The worker has not returned to any employment since his injury.
RailCorp paid workers compensation to the worker on a provisional basis until 16 October 2007 when it gave the worker notice that it denied further liability to make payments because of the opinion of an orthopaedic surgeon, Dr Stephen, who had seen the worker on 4 October 2007.
Dr Vago referred the worker to an orthopaedic surgeon, Dr Grahame Mahony, who first saw the worker on 15 April 2008 and has continued to see him.
The worker first complained of a buzzing noise in his left ear to Dr Vago on 16 October 2008. The worker was then referred by Dr Vago to an audiologist, Ms Ngo, who carried out an audiological assessment on 10 December 2008 and found severe asymmetrical hearing loss. The worker’s solicitors referred him to an Ear Nose and Throat Specialist, Dr Scoppa, who examined him on 2 April 2009. Dr Scoppa assessed binaural hearing impairment of 8.7 per cent.
An Application to Resolve a Dispute (‘Application’) was lodged by the worker’s former solicitors on 14 January 2008, matter number153/08, which sought weekly payments only from 16 October 2007. The relevant injury was described as “Head, Neck, Back”. Those proceedings were discontinued. A…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bhutta v RailCorp NSW

Details

AGLC: Bhutta v RailCorp NSW [2010] NSWWCCPD 108
Case: [2010] NSWWCCPD 108
Decision Date: 7 October 2010

CaseChat Overview and Summary

The case of Bhutta v RailCorp NSW concerns the dispute over compensation for injuries sustained by the worker, Mr Bhutta, in a work-related incident on 16 August 2007. The primary contention is whether Mr Bhutta's injuries, particularly to his head, neck, and back, were sustained in the incident and if RailCorp, as the respondent, is liable for compensation. The matter was heard and decided by the NSW Civil and Administrative Tribunal (NCAT), with a prior determination by an Arbitrator dated 21 April 2010 which was confirmed by the Tribunal.

The legal issues before the court encompassed the determination of causation and the extent of the injuries, the role of the acute management syndrome (AMS) in assessing incapacity, and the entitlement to weekly payments under the relevant workers' compensation legislation. Specifically, the court had to decide whether the injuries reported by Mr Bhutta were directly attributable to the incident, whether there was any recovery from these injuries that precluded compensation, and if the worker was entitled to ongoing weekly payments.

The Tribunal confirmed the Arbitrator's decision, finding that Mr Bhutta had sustained injuries to his head, neck, and back during the incident, and that these injuries had ongoing effects. The Tribunal noted the radiological evidence, particularly the MRI findings, which indicated significant abnormalities in the lumbar spine, including a prominent posterior disc protrusion at the L5/S1 level and a possible annular tear at the L4/5 level. This evidence supported the worker's claim of ongoing incapacity due to his injuries. The Tribunal also considered the reports of various medical experts and the notices of dispute issued by RailCorp, ultimately concluding that Mr Bhutta's claims were substantiated.

The final orders confirmed the Arbitrator's decision, affirming liability on the part of RailCorp for the worker's injuries and entitling Mr Bhutta to compensation, including ongoing weekly payments for his incapacity.

Orders

Orders of the court

The decision of the Arbitrator dated 21 April 2010 is confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Three reports of radiological investigation are relied on, the earliest of these is that of Dr Ian Benn at the hospital on the day of injury. He reported on a plain X-ray of the lumbar spine as follows:“There is slight scoliosis of the lumbar spine presumably due to muscular spasm. No fracture detected.”Dr Kaushik reported on X-rays of the cervical spine of 13 May 2008 as follows:“There is loss of normal cervical lordosis. There is reduction of body or disc heights. Focal ossification in the anterior longitudinal ligament at the C6 level is noted incidentally.CONCLUSIONMinor cervical paravertebral muscular spasm. No fracture or subluxation is seen.” Dr Schlaphoff reported on the MRI of the lumbar spine carried out on 26 May 2008 at the request of Dr Mahony. His report is as follows:“Findings:The lumbar lordosis is within normal limits.There is no significant antero or retrolisthesis noted and the position of the conus medullaris is within normal limits.There are mild disc bulges demonstrated at the L1/2, L2/3 and L3/4 levels without significant nerve root compression or other impingement associated.L4/5 Level:A broad-based posterior disc bulge is noted and this has a zone of increased intensity on the T2 weighted scans in the left paracentral protruded component which may represent a small annular tear.There is mild encroachment of the lateral recesses noted, however no significant displaced [sic] of nerve roots is present.The exiting nerve roots are not impinged.L5/S1 Level:At L5/S1 there is a more prominent posterior disc protrusion noted with a paracentral component that is more prominent on the left than the right. This appears to contact the descending S1 nerve root in the lateral recess and this should be correlated clinically.There is also hypertrophic facet joint arthrosis demonstrated at L5/S1.The paravertebral soft tissues and S1 joints visualised on this scan appear within normal limits.COMMENTThere are multilevel spondylotic changes noted in the lumbar spine however the most significant abnormalities appear to be at the L5/S1 level on the left side with less prominent changes and a possible annular tear at the L4/5 level noted.” In a claim form completed by the worker on 18 October 2007 he described suffering injury to his head, neck and back. There are two notices under s 74 of the 1998 Act in evidence which relate to matters disputed by RailCorp. In the first dated 16 October 2007 the claim was denied pursuant to ss 4 and 9A of the 1987 Act and on the report of Dr Stephen of 4 October 2007. A further notice under s 74 was given on 21 December 2009 following a claim by letter of 26 October 2009 for lump sum compensation which was made in accordance with the reports of Dr Mahony and Dr Scoppa. In short, liability was denied on the basis that the worker had recovered the effects of any injury sustained on 16 August 2007 and had not given notice of injury and made claims for compensation under ss 254 and 261 of the 1998 in relation to his hearing loss and injuries to his thoracic spine and left leg.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.