Bi-Lo Pty Ltd v Saunders
[2007] NSWWCCPD 235
•30 November 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSIONCONSTITUTED BY AN ARBITRATOR
CITATION:Bi-Lo Pty Ltd v Saunders [2007] NSWWCCPD 235
APPELLANT: Bi-Lo Pty Ltd
RESPONDENT: Jodi Saunders
INSURER:Self insured
FILE NUMBER: WCC4201-07
DATE OF ARBITRATOR’S DECISION: 16 August 2007
DATE OF APPEAL DECISION: 30 November 2007
SUBJECT MATTER OF DECISION: Section 9A of the Workers Compensation Act 1987; substantial contributing factor
PRESIDENTIAL MEMBER: President Greg Keating, DCJ
HEARING:On the papers
REPRESENTATION: Appellant: Lander & Rogers
Respondent: Walker Smith Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 16 August 2007, is revoked and the following decision is made in its place:
“1.Award for the Respondent, Bi-Lo Pty Ltd.
2.No order as to costs.”
No order as to the costs of the appeal.
BACKGROUND TO THE APPEAL
On 5 September 2007 Bi-Lo Pty Ltd (‘the Appellant/Bi-Lo’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 16 August 2007.
The Respondent to the Appeal is Jodi Saunders (‘the Respondent / Worker’).
Ms Saunders is a 23 year old delicatessen assistant and claims to have sustained injury to her left knee on 21 November 2006 when she experienced sudden pain in her knee walking back to work from a break.
Ms Saunders ceased work on 23 November 2006 and sought weekly benefits. Bi-Lo denied liability on the basis that employment was not a substantial contributing factor to the injury, under section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’).
On 8 June 2007 an Application was filed in the Commission claiming compensation at the rate of $612.19 per week from 21 November 2006 to 11 January 2007 together with medical expenses. The Application noted that Ms Saunders had returned to work on 12 January 2007.
Bi-Lo filed a Reply to the Application on 5 July 2007 putting injury, section 9A and incapacity in issue.
The parties were unable to resolve the matter at a telephone conference and it proceeded to an arbitration hearing in Taree on 9 August 2007, both parties were represented.
The Arbitrator delivered an ex tempore decision and made orders which were the subject of the Certificate of Determination dated 16 August 2007.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 16 August 2007 records the Arbitrator’s orders as follows:
1.Respondent to pay $612.19 per week from 22 November 2006 to 10 January 2007 pursuant to section 36.
2.Respondent to pay section 60 expenses.
3.Respondent to pay the Applicant’s costs as agreed or assessed.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
-whether the Arbitrator erred in concluding that Ms Saunders’ employment was a substantial contributing factor to the injury, and
-whether the Arbitrator erred in finding incapacity from 22 November 2006 to 1 December 2006.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount in issue on appeal satisfies the threshold requirements in section 352(2).
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
THE REVIEW PROCESS
The nature of a review by a Presidential Member on appeal has been succinctly summarised by Deputy President Roche in Graham Healy t/as Hunter Glass Toronto v Santarelli [2007] NSWWCCPD 188 where he said as follows:
“22.The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
23. The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
24. This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
25. Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).”
Recently, the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 confirmed this approach. The Appellant had questioned “… whether a tribunal, when considering what action it should take to reverse findings of fact should remit the matter to the primary decision-maker unless it is satisfied that there could not be a different result”. Spigelman CJ said as follows [paras 18-30]:
“… I do not accept … that a Presidential member is relevantly constrained when reviewing an Arbitrator’s decision on such a finding of fact … The concept of a review on the merits is wider than the concept of an appeal in a judicial context … a Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contents.”
These principles must be considered in determining the matter before me.
EVIDENCE
Factual Evidence
The factual evidence relevant to the issue of injury is very limited. Ms Saunders did not rely on a statement and nor did she give oral evidence at the hearing.
Bi-Lo relied on the claim form dated 30 November 2006, which described the circumstances of the injury as:
“I hadn’t had any issues with my knee before. I was walking back from morning tea. My knee clicked and became sore.”
Medical Evidence
The medical evidence for Ms Saunders is constituted by the two reports from Dr Bruce White dated 15 January 2007, the report of Dr Nguyen dated 8 April 2007, and a report of Dr K Nolan dated 8 January 2007, which is a report of an MRI of the Worker’s left knee.
Dr Nguyen who first examined the Worker on 22 November 2006 recorded the following findings on physical examination:
“She presented with a mild left knee effusion with marked tenderness over the lateral joint line. There is a probable lump at the joint line. There is also an antalgic gait. She also has limited flexion and extension of the involved knee. There is no tenderness over the insertions of either collateral ligament. Her knee is stable to collateral and cruciate assessment. All pulses are easily palpable.”
Dr Nguyen found that the physical findings were consistent with the history of injury. He arranged for X-rays of the knee to be undertaken on 23 November 2006. These showed a slight medial meniscal narrowing. A CT scan was done on 6 December 2006. The radiologists were unable to evaluate menisci or cruciate tears with a CT and recommended an MRI. As found by the Arbitrator, Dr Nguyen did not come to an independent diagnosis, but merely referred in his report to the opinion expressed by Dr White, which he interpreted as a diagnosis of a meniscal tear within the anterior aspect of the lateral meniscus.
For the sake of completeness the following is an extract of the MRI finding by Dr K Nolan undertaken on 6 January and reported on 8 January 2007:
“Findings: No joint effusion is present. High signal is seen at the anterior horn of the lateral meniscus but this does not communicate with an articular surface to confirm a tear. No significant abnormality is seen at the body or posterior horn. The medial meniscus defines normally. The cruciate and collateral ligaments are normal in appearance. No osteochondral lesions are seen. The patella and quadriceps tendons are normal in appearance. No single abnormality is seen within the cartilage at the retropatellar surface.”
The manner in which Dr White’s evidence is presented is somewhat unsatisfactory. There are two reports from Dr White in evidence, both dated 15 January 2007, one of them is date stamped 22 January 2007. The report bearing the date stamp 22 January 2007 refers to a review of Ms Saunders in the company of her parents and following the receipt of the MRI report. Dr White confirmed the MRI was suggestive of a lateral meniscal injury consistent with her physical presentation and the history of injury on 21 November 2006. He excluded a diagnosis of a lateral meniscal cyst, which had been his provisional diagnosis.
The other report of 15 January 2007 is also a very brief report and although dated 15 January 2007 is in response to a letter from the Worker’s solicitors dated 7 March 2007. It is in these terms “It is my opinion given Ms Saunders’ job description that it is likely the nature and conditions of Ms Saunders’ work at Woolworths [sic] has been a substantially contributing factor to her knee disability.”
There is no job description of the Worker in evidence.
The medical evidence of Bi-Lo consists of the medico legal reports of Dr Nigel Hope, orthopaedic surgeon, dated 15 December 2006 and 27 March 2007. There is also a WorkCover medical certificate dated 1 December 2006 provided by Dr Laurence Nguyen.
Dr Hope recorded a “work profile” in these terms:
“Jodi has worked as a delicatessen assistant Bi-Lo in Taree performing customer service, stock work and cleaning duties.
Lower limb specific physical work tasks include constant standing, constant walking, frequent squatting, occasional lifting up to 15 kilogram boxes, occasional knelling and no stair climbing.”
By the time Dr Hope prepared his report of 28 March 2007 he had been informed by the report of the MRI scan undertaken on 6 January 2007. Whilst the MRI failed to detect clear evidence of a meniscal tear, Dr Hope was of the view that a meniscal tear could be present with a normal MRI scan and recommended arthroscopy to make a definitive diagnosis. He further expanded his history of the task analysis of Ms Saunders’ work duties and recorded it in these terms:
“Specific physical work tasks include constant standing, constant walking in a 10 metre area, occasional walking 10 metres to 100 metres, occasional climbing a safety/step ladder, occasional squatting – full to floor level, constant squatting – half to knee/hip height, and occasional squatting sustained at floor level.”
Dr Hope went on to state that biomechanical analysis of the knee joint indicates that the only movement that may overload the knee is full squatting. The task analysis indicated that constant full squatting was “occasionally” required, (occasionally meaning that full squatting occurs for less than one third of the work time). He concluded that there was no evidence from this task analysis that the knee was overloaded.
Dr Hope also referred to a literature search that he caused to be undertaken “to ensure that evidence did not exist elsewhere to indicate that work as a delicatessen assistant overloaded the knee joint”. Following the detailed literature review he came to the following conclusions:
1.there is a definite increase in the incidence of the development of osteoarthritis in the knee in carpet layers, floor layers, construction workers, firemen, roofers and miners, and
2.there is a definite increase in the rate of development of osteoarthritis in the knee in those performing “knee-straining work” such as repetitive and prolonged climbing, squatting, knelling and lifting.
Further he concluded that there was no indication in the literature that working as a delicatessen assistant overloaded the knee and increased the development of osteoarthritis. He concluded that Ms Saunders’ job was not a substantial contributing factor to her current knee condition. I note that the various extracts to which the doctor referred were not annexed to his report or identified with any particularity.
SUBMISSIONS
Bi-Lo submits that:
“1.There was no evidence before the Arbitrator which would assist the Commission in arriving at the decision that employment was a substantial contributing factor to the injury. The Applicant had not provided a statement as to how the injury occurred nor had the pleadings or the medical evidence provided any information other than that the injury occurred as the applicant was returning to her place of employment after a break. It is submitted that the evidence before the Commission established a mere temporal connection with employment which is insufficient to discharge the onus of proof in respect of s.9A and contrary to the provisions of s.9A(3)(a).
2. [Extract of section 9A(2) – not reproduced]
3.It is submitted that while the applicant did not provide some evidence of a description of duties and medical opinion thereof in accordance with 2(b), that evidence supported a nature and conditions claim which was not pleaded, as opposed to providing evidence as to how those duties contributed to the likelihood of the worker suffering the injury. In the absence of any statement from the worker as to the state of her health, hereditary risks, her lifestyle and activities outside the workplace, it is submitted that the Commission could not have satisfied itself that employment was a substantial contributing factor and that there was no likely probability that the injury or similar injury would have happened in any event whether the worker was at work or elsewhere.
The Arbitrator erred in finding incapacity from 22 November 2006 to 1 December 2006.
4.It is submitted that in the absence of any WorkCover medical certificates relating to the injury for this period, nor any relevant medical reports certifying incapacity for the period, nor a statement from the worker as to any difficulties the worker was experiencing during that period, it was not open to the Commission to infer that the Applicant was totally incapacitated, or incapacitated at all.”
Ms Saunders submitted:
1.The Arbitrator did not make any error including that the Worker’s employment was a substantial contributing factor:
(a) by reason of the evidence of Dr White in a report dated 15 July 2007;
(b) the determination that the Worker’s employment was a substantial contributing factor is a question of fact and law which is not decisively determined upon the opinion of a medical practitioner;
(c) the Arbitrator was correct in finding that Ms Saunders suffered injury on 21 November 2006. That the injury was most likely due to a small tear of the meniscus;
(d) the Arbitrator was correct in his application of the principles in Mercer v ANZ Banking Group;
(e) that the Arbitrator correctly applied the principles in Federal Broom v Semlitch in that where there was no evidence of other factors which would tend to suggest that: “Anything other than that employment was a substantial contributing factor”;
(f) the Arbitrator had ample evidence through the medical reports and the claim form to support the finding of substantial contributing factor;
(g) Ms Saunders relied on the failure by Dr Hope to record whether he asked her about any pre-existing symptoms suffered by her yet went on to diagnose a pre-existing lateral meniscal cyst;
(h) Ms Saunders relied on the claim form dated 30 September 2006 recording a history of injury to “knee”;
(i) Bi-Lo’s submission to the effect that the worker bore the onus to disprove that there was no other likely probability that the injury or similar injury would have happened in any event, whether the worker was at work or elsewhere was a fundamental misunderstanding of who bore the onus;
(j) the Appellant is not entitled at law to make a submission concerning substantial contributing factor when it had not sought to cross-examine the Worker, nor had the medico legal consultant retained by the Appellant raised the issue with the Worker on examination; see Browne v Dunn, and
(k) that the Arbitrator made no error in his consideration of the section 9A issue. The Arbitrator’s reasons were thorough and detailed and the decision was open to him on the available evidence having regard to the circumstances of the claim.
2.The remaining submission is related to the incapacity issue (which are not reproduced).
DISCUSSION AND FINDINGS
Section 9A of the 1987 Act is in the following terms:
“9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or applies.”
The Parliamentary Debates, Legislative Council 26 November 1996, p.6501-10 where, in the second reading speech the Attorney General said with respect to the introduction of section 9A:
“Turning to the details of the package, the bill will limit compensation coverage to situations where employment is a substantial contributing factor to the worker’s injury or disease.
This is in line with the primary objective of compensating workers who suffer injuries that have a proper link with the workplace, rather than those whose injuries have only a remote or tenuous connection with work.
The amendments specify that the weaker test of considering whether an injury arose out of or in the course of employment will no longer be enough by itself.
Questions relevant to whether employment was a substantial factor in a worker’s injury can include the time and place of the injury, the nature and duration of the work, whether it was merely a coincidence that the injury occurred at work and the extent of any non-employment contributing factors.”
The term ‘employment’ is not defined in either the 1987 Act or the 1998 Act. In Mercer v ANZ Banking Group Limited (2000) 48 NSWLR 740 (‘Mercer’) Mason, P considered the High Court authority of Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 (‘Semlitch’) and said at [19] to [21]:
“19. The appellant cites Federal Broom Co Pty Ltd v Semlitch. There Kitto J (with whom Taylor and Owen JJ agreed) was critical of an aspect of the reasoning of Else-Mitchell J in the court below where his Honour had treated the word ‘employment’ in the definition of ‘injury’ (at 632):
as something distinct both from the fact of the employment of the worker and from any consequence of the employment and confine[d] it ... to the inherent features or essential incidents of the employment, to the exclusion of occurrences in the course of the work.
20. In the same case, Windeyer J said (at 641):
I pass then to the next, and I think more difficult, question, was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of ‘the employment’ as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.
21. The appellant submits that Bishop CCJ erred when he cited and applied the passage in the judgment of Windeyer J as distinct from that of the judgment of Kitto J. I confess that I see no difference of substance between the two judgments on this point. Each of their Honours was accepting that what Kitto J described as ‘the inherent features or essential incidents of the employment’ was relevant, employment in this context being a reference to the worker’s actual contract of employment. But the thrust of the two passages was to emphasize that ‘employment’ in the context extended to what the worker was in fact doing in his or her employment.”
His Honour noted at [13] in the same case the meaning of ‘employment’ in section 9A:
“It is common ground between the parties and well established by the earlier authority that when section 9A(1) speaks of ‘the employment concerned’ being a substantial contributing factor to the injury the legislation is not referring to the fact of being employed, but to what the worker in fact does in the employment (see Semlitch at 632-3, 641). In other words one starts with the actual and not the hypothetical, with what (if anything) the worker was in fact doing in his or her employment that caused of contributed to the ‘injury as defined in section 4.”
His Honour also said at [22]:
“The worker correctly submits that the words ‘employment concerned’ in section 9A reinforce the view that it is the work activity in which the worker was engaged at the time of injury that is relevant. The ultimate question is whether that activity or task was a substantial contributing factor to the injury, bearing in mind that the concepts of a substantial contributing factor to an injury is exegeted in sections (2) and (3) of section 9A”.
At [27] His Honour held “‘substantial’ qualifies ‘contributing factor’. Obviously it is the extent of the causal link which is at issue”.
Section 9A was considered in Stanton-Cook v Tafe Commission (NSW) (1999) 17 NSWCCR 632 where it was held by His Honour Judge Neilson at [44]:
“however, since the enactment of section 9A, it is insufficient to prove that the employee was in the course of his employment. It must be established that the injury arose out of the employment, that is that there was a causal relationship between the injury and the work that was required, expected or authorised to do in the pursuit of his employment contract.”
In Dayton v Coles Supermarkets Pty Ltd (2001) 22 NSWCCR 46 (‘Dayton’) Giles JA noted at [22]:
“…‘substantial’ qualifies ‘contributing factor’, indicating that it is the strength of the causal linkage that is in question: and it is ‘the employment concerned’ which must be a substantial contributing factor, meaning not the fact of being employed but what the worker was doing in his employment.”
In McMahon v Lagana [2004] NSWCA 164 at [35] (‘McMahon’) the Court held, although dealing with very different facts to those in issue here:
“In my opinion the question whether the worker is performing positive employment duties or is merely at an interval between such duties when the injury occurs, may be relevant to whether the employment was a substantial contributing factor...”
The Court treated substantial contributing factor as a distinct and additional question to that of the course of employment.
The fact that a worker is ‘in the course of’ his or her employment at the time of injury does not satisfy the test in section 9A. In ICM Agriculture Pty Ltd v Perry [2002] NSWCA 257 (‘Perry’) at [17] the President said:
“Nothing in those cases suggested that section 9A is satisfied merely because the injury arose out of the or in the course of employment, nor does Mercer. Section 9A(3)(a) explicitly states that a finding that the injury arose out of or in the course of employment is not, in itself, a basis for finding a substantial contributing factor”.
The Arbitrator made a finding in the following terms:
“Whilst in might a trivial incident, there is something involved in her walking at that time that she was carrying out for a work purpose, and that would seem to satisfy what the High Court said in Federal Broom v Semlitch about employment being a contributing factor. So far as the evidence discloses, it is the only contributing factor to whatever happened to the meniscus at that time. There is no evidence in this case that predisposition: there is no evidence of some developing condition that may have caused this to happen at this time, in any event, or any of the other matters in 9A that suggest anything other than that employment is a substantial contributing factor.”
In making that finding it seems to me that the Arbitrator has drawn an inference that there was ‘something’ about her walking that substantially contributed to the onset of her injury. In my view there was no evidence available for the Arbitrator to draw that inference.
In Department of Corrective Services v Clifton [2006] NSWWCCPD 310 (‘Clifton’) Acting Deputy President Roche, as he then was, was dealing with certain circumstances in which a worker was walking from the office meal table to his office when he had a coughing fit and as a result blacked out and fell to the ground. He suffered a substantial injury to his right hip. It was found that there were three main factors that contributed to the injury in that case:
•the coughing fit which caused him to black out;
•the fall from a standing position, and
•coming into contact with the concrete floor.
In that case the medical evidence established that, but for the worker’s employment, he would not have fallen heavily from a height onto concrete. It was found in that case that the employment was a substantial contributing factor to the injury.
In this case there is an absence of a causal linkage such as that found in Clifton either on the facts or the medical evidence which could justify the Arbitrator’s inference that there was “something” involved in her walking that would justify a finding that her employment was a substantial contributing factor to the injury.
Whether the act of walking, without more, could be a factor substantially contributing to the onset of the injury was not addressed by the medical evidence. Dr Nguyen in his report did not address it and although he states in his medical certificate an opinion in relation to “the worker’s employment” being a substantial contributing factor he does not further elucidate to what precisely in the employment context he is referring.
While the Commission may inform itself on any matter in such a manner and it thinks appropriate, and, as the proper consideration of the matter before it permits, section 354(2), Rule 15.2 of the Workers Compensation Commission Rules 2006 requires 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 assumption is unacceptable, and
(d)unqualified opinions are unacceptable.
(See also South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [131] (‘Edmonds’))
In my view the statement of opinion expressed by Dr Nguyen amounted to a bare ipse dixit (of the kind referred to in Edmonds) and offered no evidentiary support for the Arbitrator’s conclusion.
Ms Saunders further submits that the Arbitrator had ample evidence from the medical reports and the claim form in respect of the issues complained of by the Appellant. In that regard reliance was placed on the report of 8 April 2007 from Dr Nguyen as follows “There was no previous history of any injury to either knee apart from a small laceration to the front of her knee when she was ten years old” and “There is no pre-existing injuries/conditions that relate to current injuries”. In my view that evidence is not evidence of a causal relationship to employment from which the Arbitrator could safely infer that walking during the course of her employment was a substantial contributing factor.
The only other medical evidence that could fit the description of “ample evidence” is that of Dr White. There were two reports provided by Dr White but a full medical report in the conventional sense has not been produced in evidence. Two short reports one of which appears to be a progress report from Dr White to a general practitioner in Taree and the other, a very brief statement of opinion in response to a request from the Worker’s solicitor. Neither of those reports addresses what I think is the essential question of whether the mere act of walking can substantially contribute to an injury of the kind suffered by the Ms Saunders.
To the extent that the medical evidence addressed a causal relationship at all, both Dr White and Dr Nguyen addressed themselves to the question of whether the nature and conditions of Ms Saunders’ employment as a delicatessen assistant could be a substantially contributing factor. In Dr White’s case he addressed the question of whether, it could be a substantial contributing factor to the ‘disability’ not the ‘injury’. In any event the nature and conditions of Ms Saunders’ employment was not pleaded, Ms Saunders relied solely on the frank incident that occurred on 21 November 2006, (see Part 5 of the Application for Expedited Assessment which refers only to the incident occurring on 21 November 2006 in respect of an injury to the left knee, “injured returning from a work break”). I accept Bi-Lo’s submission in this respect.
The drawing of the inference by the Arbitrator referred it in paragraph [46] above, in the absence of any factual or medical evidence to support it, constitutes an error of law.
Browne v Dunn
It is further submitted by Ms Saunders that:
“The Appellant is not entitled at law to make the submission that the Commission could not have satisfied itself that employment was a substantial contributing fact and that there was no probability that the injury or similar injury would have happened in any event whether the worker was at work or elsewhere in circumstances where it did not seek to cross-examine the Respondent, in respect of the evidence referred to above at paragraphs [8] to [10] inclusive, directly upon the arbitration nor did its appointed ‘pre-eminent’ medical specialist raise the issue with the Respondent on examination. The Respondent relies on Browne v Dunn.”
The rule in Browne v Dunn (1893) 6 R 67 (HL) is a rule of professional practice. Hunt J in Allied Pastoral Holding Pty Ltd v FCT [1983] 1 NSWLR 1 at [16] formulated it this way:
“Unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matters it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with the other evidence or the inferences to be drawn from it and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn.”
The submission is misconceived and I reject it for a number of reasons. Firstly, the Commission is not bound by the rules of evidence. Section 354 of the 1998 Act gives the Commission discretion in the manner in which proceedings are to be conducted. It prescribes that they are to be conducted with as little formality and technicality as the proper consideration of the matter permits. Secondly, the rule in Browne v Dunn addressed itself to factual issues. It mandates that if a cross-examiner intends to rely on certain factual matters then it is necessary for him to put those issues before the opponent’s witnesses in cross-examination. Such a rule is necessary to give the witness the opportunity to deal with that other evidence or inferences that are to be drawn from it and to allow the other party to call evidence to either corroborate the facts or to contradict them. In this case there is no contest on the facts. Ultimately the Appellant made no submission on the facts that were inconsistent with the Respondent’s own case. On the facts of this case I see nothing in the Browne v Dunn issue that would prohibit the Appellant from arguing a question of law on the section 9A issue.
The Appellant’s first three grounds of appeal all relate to the section 9A issue. That issue has been decided in the Appellant’s favour for the reasons discussed. The Appellant’s fourth ground of appeal relates to the Arbitrator’s finding on incapacity during the period 22 November 2006 to 1 December 2006. In view of the findings I have made in relation to the section 9A issue it is unnecessary to consider the incapacity ground.
CONCLUSION
For the reasons above I accept the Appellant’s submission that there was no evidence before the Arbitrator to enable him to find that employment was a substantial contributing factor to the injury. Having so found it is unnecessary for me to further consider the additional grounds of appeal, including the grounds relating to incapacity.
DECISION
The Arbitrator’s determination of 9 August 2007 is revoked and the following order are made:
1.Award for the Respondent, Bi-Lo Pty Ltd.
2.No order as to costs.
COSTS
No order as to the costs of the appeal.
His Honour Judge Greg Keating
President
30 November 2007
I, MELANIE CURTIN CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON. JUDGE GREG KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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