BlueScope Steel Limited v Dafkovski
[2006] NSWWCCPD 306
•14 November 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:BlueScope Steel Limited v Dafkovski [2006] NSWWCCPD 306
APPELLANT: BlueScope Steel Limited
RESPONDENT: Peter Dafkovski
INSURER:Self insurer
FILE NUMBER: WCC17041-05
DATE OF ARBITRATOR’S DECISION: 17 February 2006
DATE OF APPEAL DECISION: 14 November 2006
SUBJECT MATTER OF DECISION: “Injury”; “substantial contributing factor”; onus of proof; incapacity.
PRESIDENTIAL MEMBER: Acting Deputy President Anthony Candy
HEARING:On the papers
REPRESENTATION: Appellant: Sparke Helmore Lawyers
Respondent: Carroll & O’Dea Lawyers
ORDERS MADE ON APPEAL: (1) The decision of the Arbitrator dated 17 February 2006 is confirmed.
(2)The appellant employer to pay the costs of the respondent worker.
BACKGROUND TO THE APPEAL
Peter Dafkovski (‘the worker’) was employed by BHP Steel Port Kembla to work at No 5 Blast Furnace in June 1995. He transferred to work as a shunter in 1997. BHP Steel at some stage became BlueScope Steel Limited (‘the employer’).
In April 2004 the worker commenced training as a train driver and several months later commenced that work. In about February 2005 the worker started to wake up at night with numbness and tingling during use of the left hand and forearm. On 6 April 2005 he awoke and found that his left hand was swollen and could not squeeze his fingers together. The worker attended work that day because he said he feared dismissal if he took time off. The worker spoke to his supervisor, Mr Abe Robertson, and told him that he did not think he would be able to work. The worker was then taken to the employer’s medical centre where he was seen by a nurse, Ms Rhona Stephens, who expressed the view that the worker was suffering from carpal tunnel. The worker was then told to see the manager, Samantha Knight.
The worker saw his general practitioner, Dr Theresa Ong, the same day and told her that he had a similar episode at the end of the preceding year. Dr Ong referred the worker for nerve conduction studies which were performed on 12 April 2005 and showed moderate to severe left and minor right carpal tunnel syndrome. Dr Ong continued to see the worker and first gave him a WorkCover Medical Certificate on 18 May 2005. On that certificate the doctor has recorded under the heading “How the injury occurred”:
“Repetitive wrist movements – symptoms recurred – commenced 6-8 months previously.”
The date of injury is given as 6 April 2005. Dr Ong certified him unfit for work from 24 April 2005 to 30 May 2005 and then from 30 May 2005 to 8 June 2005.
The worker had seen another general practitioner, Dr J. Martel, on 28 April 2005 and was certified unfit by that doctor up until 1 November 2005 in a number of medical certificates.
On 13 April 2005 Dr Ong referred the worker to Dr Mark Nabarro, a hand and microsurgeon. Dr Nabarro saw him on 11 May 2005 and recommended that a left open carpal tunnel release be done which was tentatively arranged for 24 May 2005. The surgery was never carried out as the employer did not accept liability for its cost.
A formal claim for compensation was made on 29 April 2005 and the employer responded by letter of 14 June 2005 advising the worker that the claim had been denied due to:
“Insufficient information to support work is a substantial contributing factor.”
The employer commissioned a factual investigation from Itech Investigations and the report is dated 12 May 2005. In the course of that investigation statements were obtained from the worker as well as Mr Robertson, Ms Samantha Knight and Ms Rhona Stephens. I will deal with the investigation in detail when considering the evidence in this matter.
In light of the refusal of the claim by the employer, the worker’s solicitors lodged an ‘Application to Resolve a Dispute’ with the Workers Compensation Commission (‘the Commission’) on 7 October 2005. In that application weekly compensation was sought from 6 April 2005 at the rate of $1,324.37 per week together with section 60 expenses of $3,193.50 being the cost of the proposed surgery. A teleconference was held on 16 December 2005 and a conciliation/arbitration hearing on 30 January and 16 February 2006 when the worker gave evidence.
The Arbitrator determined the matter in favour of the worker and it is in relation to that determination that the employer has sought leave to appeal by application filed on 16 March 2006.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 17 February 2006 records the Arbitrator’s orders as follows:
“1.That the Respondent pay the Applicant weekly compensation at the rate of $1,306.32 for 6, 13 and 14 April 2005 and from 24 April 2005 to 21 October 2005 under section 36 of the Workers Compensation Act 1987.
2.That the Respondent pay the Applicant weekly compensation at the statutory rate of $340.90 from 22 October 2005 to date under section 37 of the Workers Compensation Act 1987 such weekly payments to continue in accordance with the provisions of the Act.
3.That the Respondent is entitled to credit for any amounts paid by way of weekly compensation to the Applicant.
4.That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts.
5That the Respondent pay the Applicant’s costs as agreed or assessed.”
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 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.
The amount at issue on the appeal is in excess of $5,000.00 and all of that amount is at issue on the appeal. Section 352(2) of the 1998 Act is thus satisfied.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Accordingly leave to appeal is granted.
EVIDENCE
Three statements of the worker were in evidence dated 12 May 2005, 21 July 2005 and 7 December 2005. In the earliest of these the worker confirmed his employment history. He dated the commencement of his symptoms at February 2005. He set out the events of 6 April 2005 with which I have dealt earlier. He stated that when driving a locomotive he had to use both hands equally. The levers he had to operate were at or about face height when he was sitting down. He said he used a lot of wrist movements with both hands when operating brake levers. He told the doctors what he did with the brake levers and reportedly they were of opinion that the wrist action had caused the problem with his left hand and wrist. The right hand and wrist was said to be a very minor problem. He had not attended work since his last night shift on 24 April 2005. Since that time he had been off work and his symptoms were there but not as bad. He said he did not play sport and had never injured his left hand. He said he had been a member of Fitness First in Wollongong for a couple of years. There he said he only lifted light weights and did cardio work to stay fit. In October or November 2004 he had become very sick with what he described as “strep throat” which had put him in hospital in order to have drainage carried out. He was in hospital for two weeks. He said that when he recovered he was weak and did not go to the gym for a long time but started off again in December 2004. He said he had been going to gym once a week and taking it easy. He had later started to attend twice a week.
In the statement dated 21 July 2005 he said that he first developed pain in his left hand in “late 2004 or thereabouts”. He had started driving in about June 2004. The worker referred to Dr Ong sending her report to BHP incorrectly indicating that he reported that he had problems with his hand before he started with the company (BHP obviously refers to his employer).
In the statement dated 7 December 2005 the worker referred to the reply filed on behalf of the employer and, in particular, to the report from Itech Investigations dated 12 May 2005 and the statements from Mr Robertson , Ms Knight and Ms Stephens. He denies that he said that his condition was not work-related. He said that his recollection is that he said he did not know whether it was or was not work-related since he did not know the cause of his symptoms at that time. The worker referred to the statement of Ms Knight and, in particular, to his attendance at work over the twelve month period before the onset of left wrist symptoms. He concedes that this was “not great”. He said he was sick on a number of occasions with, in particular, problems with his throat in October 2004 for which he was hospitalised for two weeks. He said he had not been counselled in relation to performance issues. He recalled, because of his partner’s attendance upon a physiotherapist, Harry Stamateris, that he had seen the same physiotherapist himself in December 2004 for problems with his left arm. The physiotherapist is said to have diagnosed carpal tunnel syndrome. The worker attended upon him twice for treatment. He said he had continued to attend the gymnasium following the onset of symptoms and used the cardio machines as well as doing some swimming from time to time. He said he enjoyed going to the gym not only for fitness but as a social event. He said he had not been paid any compensation and had used up his annual leave, long service leave and sick leave.
On 16 February 2006 the worker’s counsel sought permission to have the worker give some evidence and the employer’s counsel sought leave to cross-examine, both of were granted. I will deal only with the worker’s evidence which differs from that which is contained in the statements which were before the Arbitrator. He said that he worked 12 hour shifts which was said to be 12 hours, four days on and four days off. Typically he would work from 7 in the morning until 7 at night. The locomotives were said to be very loud and vibrated a lot. This was compared by the worker to a jackhammer. He said he always had to hold onto the brake lever and the lever for accelerating and decelerating. It required circular motion of the hand to operate the accelerator. The shift was said to involve 6 to 8 hours actual train driving. There were it appears two brake levers, one for the locomotive and the other for the wagons.
Cross-examination
The worker was cross-examined as to the work which he performed as a locomotive driver. He said he had been working in a blast furnace for about 14 or 15 months when he started work for BHP, going onto rail wagons in October 1997 as a shunter. The worker’s duties as relief crew driver were said to be relieving the locomotive drivers at the No 5 blast furnace. Over a twelve hour shift he said there would be four hours when he was driving as relief driver as well as morning tea. The worker gave evidence about seeing the physiotherapist, Mr Stamateris and said he did not see a doctor at that time because he did not take it too seriously. He had seen Mr Stamateris once in 2004 and once in January 2005. The worker said he went to work on 6 April 2005 to show his supervisors because he had been given warnings about absenteeism. He admitted that in April 2005 he did not think that work had any role to play in any problem which he had with his left hand. He was cross-examined about his regular attendance at Fitness First. Dr Ong had suggested to the worker that he should take up a fitness regime in view of his high cholesterol levels. He was cross-examined as to his lifting of weights which were said to be light. He admitted that using certain weight lifting machines involved both of his wrists. The worker was cross-examined as to the records produced by Fitness First as to his attendance at the gym. These showed he went back to the gym on 4 November 2004, only two days after his discharge from hospital, and went some sixteen times to the gym in November 2004. He said he had told Mr Stamateris when he saw him in December 2004 that he would go to the gym and would do weights. The worker admitted that since complaining of injury he had continued to go to the gym regularly, as many as twenty times a month in September 2005. It was suggested to him that the effort that he put in attending his gym programs greatly exceeded the effort he put in at work driving a train. The worker said he did not know.
In re-examination the worker was asked about the weight-lifting at the gym and other exercises, namely use of a walking machine, a bicycle and Pilates exercises.
Worker’s Medical Evidence
The worker relied on a report of Dr Roger Pillemer, orthopaedic surgeon, dated 30 August 2005. That doctor obtained a history that the worker had since June 2004 been driving a train for BlueScope Steel. He was said to work 12-hour shifts, “four on, four off”. The worker told the doctor how he drove the train which the doctor thought seemed to involve fairly constant use of one or other wrist and hand, particularly when working the brake – although there was not any particular force required. The doctor goes on to say: “The other hand would use the accelerator lever when necessary, and applying the train brake with either hand does require a fair amount of force”. The worker had first noticed onset of symptoms in the left hand 6 to 8 months before and his symptoms became progressively worse. Dr Pillemer noted the nerve conduction study of 12 April 2005 showing “moderate to severe left and minor right carpal tunnel syndrome”. Dr Pillemer’s opinion was that the clinical presentation was very suggestive of bilateral carpal tunnel syndromes which had been confirmed on nerve conduction studies. Under the heading of “Attributability” the doctor suggested that the worker had an underlying predisposition to the development of the condition but, in his opinion, the nature and conditions of the work described were more likely than not to be a substantial contributing factor to his development of the carpal tunnel syndromes. The doctor thought that if he had not been doing the work he was doing as a train driver, it would have been very unlikely he would have developed the significant carpal tunnel problems which he developed on the left side. Dr Pillemer was of opinion that the worker required a carpal tunnel release on the left side which should be carried out sooner rather than later. He thought the insurance company would be liable for the cost of this surgery. He considered that the worker was fit for a wide range of employment opportunities and activities which did not place excessive stress on his left upper limb or involve rapid or repetitive use of his wrist and hand. He thought it was unlikely that the worker would get back to gainful employment until the surgery had been successfully completed.
Dr Nabarro reported to Dr Ong on 11 May 2005. He said the worker presented with an eight month history of numbness and tingling affecting both hands, significantly worse on the left than the right. These were progressively increasing. He had been wearing a splint at night and, since wearing that, had no nocturnal paraesthesiae. Under “Impression” the doctor recorded:
“Peter presents with signs, symptoms and electrophysiological evidence left carpal tunnel syndrome which appears to have been caused by his work activities.”
Dr Ong, by report of 18 May 2005, addressed to BlueScope Steel, stated that she first saw the worker for the condition in question on 6 April 2005. His further consultation dates were 13 April and 18 May 2005. The doctor records that the worker did not mention work as being related to his symptoms at the initial consultation and for that reason a WorkCover Certificate was not issued then. She said that it was not until 18 May 2005 that the worker mentioned his work as a contributing factor and she had received a report from Dr Nabarro mentioning that, in his opinion, work may have been contributing to his condition. The doctor was asked whether working with light weights could be a possible contributing factor to his condition, in response to which she replied that that could be case, however, that would depend on the frequency, intensity and actual weights of which she did not have a history from the worker at that time.
Dr Martel, general practitioner, reported to BlueScope Steel on 16 May 2005. That doctor said “I just put him down as being unfit for work on 28.4.05 as he was only having the one day off work and he’d had a bad 24 hours with pain and did not feel he was capable of working on that particular day”. The doctor refers to the positive EMG study and made the assumption that work had been a contributing factor due to the usage of his hands and the vibrations of the train. He did not think that sport or injury was a contributing factor. He did say it was unusual for such an injury to occur in a 34 year old so he assumed that work had been a contributing factor.
On 2 December 2005 Mr Stamateris, physiotherapist, reported. He had seen the worker on 8 December 2004 and again on 28 January 2005. He was diagnosed with carpal tunnel syndrome with a positive Tinel’s sign and a positive Phalen’s sign. The worker had told the physiotherapist he was employed as a train driver and his employment was a major contributing factor. The physiotherapist agreed that train driving could be a major contributor to his carpal tunnel syndrome. It appears that Mr Stamateris did not see the worker again after 28 January 2005.
The Investigation Report
The reply lodged on behalf of the employer attached a report of Itech Investigations dated 12 May 2005, together with statements to which I have earlier referred. There is a statement of Mr Robertson (sometimes referred to as Robinson ) who was team leader on A crew, Hot Metal and Slab Rail Operations. The worker was on his shift and was a locomotive driver. He said that on 6 April 2005 the worker saw him and told him of pain and discomfort in his left hand. Mr Robertson asked him whether it was work-related and he said it was not. The worker was driven to the medical centre where he was seen by Ms Rhona Stephens, the occupational health nurse. Mr Robertson then telephoned Ms Knight, the manager, but having received no answer called Mr Paul Downing who used to be the manager. He informed him what had happened. Mr Robertson was concerned about the worker’s past absentee record. A meeting was held with Ms Samantha Knight at about 9 a.m. that day. The worker told her that he woke with pain in his left wrist and hand and it was not work-related. The worker was informed that he would not be paid for any part of his shift as he had not started work and he would need to produce a doctor’s certificate saying he was unsuitable for work because of his left wrist and hand. The day following, 7 April 2005, the worker presented at work with a doctor’s note saying he was unfit for the rest of the week. The worker had, it is said, no sick pay left and accordingly wanted annual leave which was approved.
On 13 April 2005 the worker presented at work and told Mr Robertson that he still had a problem with his left hand. The worker was sent home until he had a clearance from his doctor saying he could perform normal duties. The worker then again presented for work on 21 April 2005 with a doctor’s certificate stating he had been unfit for work for a period but was able to commence work again. He worked on 21 April as a locomotive driver and also worked the next three shifts, up to and including Sunday 24 April 2005. Over those four shifts Mr Robertson asked him how his hand was going and the worker said that he had some pain in his left hand but it would be alright. The worker did not return to work for a training day on Thursday 28 April 2005 and Mr Robertson received a message from Mark Cross at the end of the day saying the worker had called in sick for the training day and it may be workers compensation related. On 29 April 2005 at the start of the shift the worker called Mr Robertson from Sydney saying he would not be in to work and his injury was work-related. Mr Robertson told him that Ms Knight might want him to come to work for a meeting and the worker said he may not be able to drive down from Sydney as his hand may give him problems. After a conversation with Ms Knight, Mr Robertson telephoned the worker on his mobile phone and told him that he was required to come to work and if he could not drive, transport would be provided. The worker drove down from Sydney and arrived at work at about 10 a.m. He had a meeting with Ms Knight and also the union delegate in Rail Operations. At that meeting the worker was advised to complete a workers compensation package which was done. Mr Robertson said that he had heard of the worker exercising at a gym and had personally spoken to him about “ certain exercises using weights and to keep fit.”
Ms Knight made a statement. She was the Rail Transport Manager, Iron & Slab, of the employer. She said that she had meetings with the worker around attendance and performance. In terms of attendance he was on level five which is poor attendance and high on the scale. This was known as “Manager’s Final Warning”. She confirmed what Mr Robertson said the worker had said, namely, that he could not say what caused the injury but driving locomotives irritated the injury.
Ms Rhona Stephens made a statement in which she described herself as an occupational health nurse employed in Flat Products Health Centre. She stated that the worker attended the health centre with his supervisor, Mr A. Robertson. The worker had told her that he woke up at home 2.30 a.m. with a painful, swollen left hand. He told her that he could not relate his symptoms to any specific incident at work. She examined the worker and noted that his left hand was swollen. She offered to make an appointment with one of the medical centres to see a doctor. The worker said he went to a medical centre there and has a GP in Sydney. He did not want to go to any doctor in Wollongong. Ms Stephens gave him work restrictions for his left hand which involved no shovelling, restriction in climbing stairs and ladders, lifting with left hand to be restricted, throwing, pushing or pulling restrictions also and only to drive an automatic vehicle. The worker did not return that day for treatment. He did not complain about pain in his left wrist but said it was uncomfortable.
Employer’s Medical Evidence
Subsequently the employer obtained a report from Dr Murray Stapleton who is described as a hand, plastic and reconstructive surgeon. His report is dated 23 November 2005. Dr Stapleton saw the worker on 22 November 2005 and referred to forwarded documentation which is not identified. Dr Stapleton did however refer to Dr Pillemer’s report of 30 August 2005. Dr Stapleton made the point that it was correct, as Dr Pillemer, had said that the underlying cause of carpal tunnel syndrome was not known. The doctor said that it was an undeniable fact that it could not possibly be related to occupation. He stated that those who have occupations in which they repetitively use their fingers or hands more, do not suffer from carpal tunnel syndrome more than the population at large. The majority of sufferers of the condition were women of menopausal age, half of whom did not work at all. The condition was said to have a genetic basis. Dr Stapleton draws a distinction between carpal tunnel syndromes and carpal tunnel symptoms. He thought the work as a train driver and the use of handles to control the train was a question relating to symptoms – not an underlying cause or an underlying question of aggravation. The doctor noted that the symptoms were far worse on the left side, which was the non-dominant side, than the right. He also referred to the worker not having worked since April 2005 and argued that any work-related symptoms would have diminished. However, there had been no change in his symptoms at all. He noted that the worker was a qualified panel-beater and thought, if ever there was an occupation which provided regular movement and trauma to wrists and hands that must surely be it. However, he did not suffer from carpal tunnel syndrome while he was a panel-beater. Dr Stapleton thought that the worker had bilateral carpal tunnel syndrome, the left greater than the right. He was capable of employment but should not be driving a train due to annoying symptoms which the worker said would render him unsafe to do so. He would be capable of lighter duties that did not involve repetitive flexing of the wrist. The worker would be able to return to his pre-injury employment following surgical decompression of the wrists.
Fitness First
A computer printout of attendances at Fitness First is also relied on by the employer. This printout is dated 11 November 2005 and shows attendances from 20 May 2003 to 10 November 2005 at Wollongong or Sylvania. These total, on my calculations, 290 odd attendances over that period
ARBITRATOR’S REASONS
In a long and careful decision the Arbitrator found in favour of the worker. He disregarded the observations made by the investigator as to the worker’s emotional and psychological state at the time that he interviewed him. (The investigator had noted that when he asked the worker if he worked out in a gym, the worker first displayed signs of being nervous, started to speak at a quicker rate, cracked his knuckles and beads of sweat started to form on his brow. The investigator made a similar comment in relation to the worker telling his supervisor that his hand was not work-related when he was said to noticeably start to sweat.) The Arbitrator dealt with the question whether the lifting of light weights on the occasions when the worker attended the gym contributed to the carpal tunnel syndrome. The only medical evidence in support of this was that of Dr Ong in which she said:
“In my opinion, working with light weights could be a possible contributing factor, however it may depend on the frequency, intensity and actual weights, of which I do not have a history of from patient at this time”.
The Arbitrator analysed the frequency of gym attendances between 2003 and 2005. The Arbitrator was not persuaded that the work with light weights was a possible substantial contributing factor to the injury. He notes the concession made by the employer’s counsel that there can be more than on substantial contributing factor to an injury, as was held by the Court of Appeal in Mercer v ANZ Banking Group Limited (2000) 48 NSWLR 740 (‘Mercer’).
The Arbitrator dealt with the statement of the three employer’s witnesses and the statements of the worker as to the causation of the injury on 6 April 2005. The Arbitrator noted that this evidence hardly seemed relevant and referred to Dr Stapleton’s statement that the underlying cause of carpal tunnel syndrome was not known. The Arbitrator noted that one of the worker’s claims of injury was based on the nature and conditions of employment. The Arbitrator correctly noted that the onus of proof lay on the worker in relation to injury, employment being a substantial contributing factor to injury and that the worker had an incapacity for work. The Arbitrator referred to the opinion of Dr Pillemer as to the nature and conditions of work being more likely than not to be a substantial contributing factor to the development of carpal tunnel syndromes. The Arbitrator also referred to the opinion of Dr Nabarro that the left carpal tunnel syndrome appeared to have been caused by his work activities. Dr Martel made a similar statement, as did the physiotherapist.
The Arbitrator dealt with the report of Dr Stapleton and noted that that doctor’s opinion was that there was no work injury and work was not a substantial contributing factor to any such injury. Dr Stapleton had referred to statistics as to the majority of sufferers of carpal tunnel syndrome, being women of menopausal age. The source of those statistics was not given. The Arbitrator considered that Dr Stapleton’s report did not comply with paragraphs (b), (c) and (e) of rule 5 of Schedule 1 of the District Court Rules. These are as follows:
“5. A report by an expert witness must (in the body of the report or in an annexure) specify:
(a)the person’s qualifications as an expert, and
(b)the facts matters and assumptions on which the opinion in the report are based (a letter of instructions may be annexed), and
(c)reasons for each opinion expressed, and
(d)if applicable – that a particular question or issue falls outside his or her field of expertise, and
(e)any literature or other materials utilised in support of the opinions, and
(f)any examinations, tests or other investigations on which he or she has relied and identified, and give details of the qualifications of, the person who carried them out.”
The Arbitrator also considered that the doctor’s opinion also fell foul of rule 70(a) and (c) of the Workers Compensation Commission Rules 2003, that is, he said, it is evidence that was not probative and was based on unsubstantiated assumptions. Such opinion was thus not acceptable.
The Arbitrator considered that Drs Pillemer, Nabarro and Martel were entitled to arrive at the opinion that employment was a substantial contributing factor to development of the carpal tunnel syndrome. A further factor was that, while symptoms worsened from December 2004 to April 2005 when he was working, they reduced after he stopped driving locomotives on 24 April 2005. Dr Stapleton’s statement that there was no change in the worker’s symptoms at all was at variance with the applicant’s statement admitted in the proceedings. The Arbitrator concluded that the nature and conditions of the worker’s employment from June 2004 to 24 April 2005 were a substantial contributing factor to the development of the carpal tunnel syndrome. The Arbitrator thought that if the use of light weights was a substantial contributing factor, although he thought there was insufficient evidence of this, then he did not consider the nature and conditions of the worker’s employment as a train driver was a minor factor by comparison (Dayton v Coles Supermarkets Pty Ltd (2001) 22 NSWCCR 46 (‘Dayton’).
The Arbitrator then dealt with the issue of incapacity. He noted that the onus of proof was on the worker in relation to this. The Arbitrator was satisfied that the worker was at least partially incapacitated from the date of consulting Dr Pillimer, namely 30 August 2005 and totally incapacitated prior to that date. The Arbitrator noted that the onus of proving, on the balance of probabilities, that the worker was able to earn income at some suitable employment lay with the respondent and a decision of the Supreme Court of Western Australia is cited in support of this, namely Tipper v Orbital Engine Company Pty Ltd (Full Court No. 208 of 1991, 15 February 1993) (‘Tipper’). The Arbitrator also referred to the decision of Burke J in Mangion v Visy Board Pty Ltd (1992) 8 NSWCCR 175 (‘Mangion’). It had been submitted on behalf of the employer that the worker could undertake a wide range of light duties including returning to work in the blast furnace. The Arbitrator said he had no evidence before him to show that the worker could manage computer entries, let alone tapping the blast furnace when required. He noted that the Work Capabilities Form (of 6 April 2005) restricted the worker from climbing stairs or ladders or working at heights, shovelling or throwing, pushing or pulling, with no exposure to dust, fumes or gases. The Arbitrator thought that panel-beating was something for which the worker was clearly unsuited. Shunting duties may be possible depending on the physical effort involved in coupling and uncoupling wagons. There was no evidence that the respondent had offered this or other suitable light duties. The Arbitrator considered that the realities of the labour market and the limitation in the work that the worker could physically undertake indicated that he was unlikely to obtain suitable employment in the general labour market in terms of section 40(3) and section 43A of the 1987 Act, even though he may have a capability to perform some work for some periods of time. The Arbitrator then referred to what was said by Mahoney P in Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206 (‘Lawarra’). On the balance of probabilities, the Arbitrator held that the worker was effectively totally incapacitated from 30 August 2005 and would remain so until after he had carpal tunnel surgical release of the left wrist. It was for these reasons that the Arbitrator entered the award for weekly payments to which I have referred in paragraph 10 above.
SUBMISSIONS, DISCUSSION AND FINDINGS
There are eleven grounds of appeal and submissions in support of the appeal. In fact, some of the purported grounds of appeal are submissions in relation to grounds of appeal which are not explicitly stated. Legal practitioners drafting grounds of appeal would do well to bear in mind an observation made by McHugh J in Tame v New South Wales (2002) 24 NSWCCR 385 at 409 when he quoted a statement by Aldisert J which appears in Opinion Writing, (1990) at 89. That observation is as follows: “When he sees ‘an appellant’s brief containing 7 to 10 points or more, a presumption arises that there is no merit to any of them’”. I make no such assumption in this case however I would observe that the proliferation of grounds of appeal many of which have little or no merit may distract from those grounds which do have merit.
The grounds of appeal and submissions lodged on behalf of the employer can I think be distilled to a number of distinct grounds of appeal which, as I have earlier said, have not been explicitly stated. Rather, various criticisms are made of the reasons given by the Arbitrator for making the decision that he did. The grounds of appeal are, it appears to me:
·that the Arbitrator erred in finding that the worker had suffered an injury;
·that the Arbitrator erred in finding that employment was a substantial contributing factor to such injury;
·that the Arbitrator erred in rejecting the evidence of the investigator as to the worker’s observed behaviour while being interviewed;
·that the Arbitrator erred as to the onus of proof, being on the employer;
·that the Arbitrator erred in finding that the worker was entitled to be compensated as totally incapacitated.
I will deal with these grounds in order, firstly, the submissions on behalf of the employer and then the submissions on behalf of the worker and finding my conclusion in relation to each ground.
Injury
The employer seeks to argue that the Arbitrator’s analysis of medical evidence is defective for want of a full history having been provided to the various medical practitioners. These defects in history are said to be as to the worker’s duties and their duration, the alternate causes of the onset of symptoms and the worker’s previous medical history prior to the onset of symptoms. It is said that the worker admitted in evidence that he was not working for the whole of his 12-hour shift but only for part of it. Perhaps, it is said, 1.6 to 3 hours spread over that shift. There is a complaint that no doctor has an accurate history of the worker’s poor attendance record or of his serious ill-health prior to the onset of symptoms at the end of 2004. The employer relies on the worker’s attendances at Fitness First on 20 occasions between 4 November 2004 and 8 December 2004 as being a credit issue in relation to the worker’s evidence.
The worker relies on the opinion of the employer’s doctor, Dr Stapleton, and quotes the final paragraph from page 3 of his report which is as follows: “I would also point out that it is not only the work as a train driver that causes him nerve compression”. The doctor goes on to say “Any activity, whether it be at the workplace or at home where his wrist is flexed, then he will get disturbing symptoms of pain, pins-and-needles and numbness”. The employer, it is said, was aware of the worker’s attendance at a gymnasium and had in fact obtained an opinion from Dr Ong in relation to this. It is said that the employer did not seek to develop that issue via Dr Stapleton.
Crudely stated, what the employer is saying it seems to me, is that the onset of the worker’s symptoms of carpal tunnel syndrome was as a result of his lifting of weights as part of an exercise program at a gymnasium. There is, in my opinion, ample medical evidence that the work performed by the worker was a causal factor in the development of the condition for which he sought compensation. The Arbitrator is not obliged to accept the opinion of Dr Stapleton over that of Dr Pillemer and Dr Ong. I do not consider that the suggested inadequacies in the histories given by the worker to various doctors were such as to affect the conclusions reached by those doctors. The question of the worker’s attendance record is of doubtful significance in my view. Although the employer was clearly positioned to do so, it did not lead evidence as to the periods for which the worker was absent for whatever reason. In my opinion this ground has not been made out.
Employment not a substantial contributing factor
The employer relies on the provisions of section 9A of the Workers CompensationAct 1987 (‘the 1987 Act’). These are so well-known as not to require repeating. These impose an additional limitation on a worker’s entitlement to compensation. Not only must the worker establish an injury caused by or arising out of the employment (section 4 of the 1987 Act) but the worker must also establish that the employment was a substantial contributing factor to such injury and a number of matters required to be taken into account are specified in section 9A. It is submitted on behalf of the employer that the Arbitrator did not consider each of the matters required to be taken into account in section 9A. The Arbitrator, it is true, did not deal with the six matters enumerated in section 9A. In relation to this issue he said this at [43]: “Having regard to the wrist and hand action required by the controls of the locomotives, as described by the Applicant in his oral evidence, the Doctors were entitled to arrive at the opinion that employment was a substantial contributing factor in the development of the carpal tunnel syndrome.” The Arbitrator relied additionally on the worker’s statement that his symptoms worsened from December 2004 to April 2005 while he was working and then reduced after he stopped driving locomotives on 24 April 2005. The question of whether employment was a substantial contributing factor is one for the Arbitrator and it seems to me strictly not one for medical opinion. As I observed in Marrickville RSL Club Limited v Mukesh [2006] NSW WCCPD 152 at [51] there are a number of propositions regarding section 9A which may be stated with some certainty. These were:
·Section 9A does not require that the employer be the substantial contributing factor, nor does it attempt to exclude predisposition or susceptibility to a particular condition – Mercer.
·“Substantial” in section 9A means more than minimal, large or great: other causative factors may be present – Mercer.
·The ultimate decision as to “substantial contributing factor” is a finding of fact and is a matter of impression and degree – McMahon v Lagana [2004] NSWCA 164.
While the Arbitrator does not specifically refer to the matters enumerated in section 9A, I think that his conclusion that the employment was a substantial contributing factor to the injury was open on the evidence and ought not be disturbed.
Rejection of evidence of investigator
It is submitted on behalf of the employer that the investigator was entitled to make observations as to the physical appearance of the worker and it was a question as to weight rather than the rejection of that evidence. It is submitted on behalf of the worker that “not much turns upon either the acceptance or rejection of such evidence in this case”. With that latter submission I am entirely in agreement. The Arbitrator ought to have given the observation of the investigator such weight as it warranted. This, in my opinion, is very little and not a great deal turns upon the rejection of that evidence.
Onus of proof
Complaint is made by the employer that the Arbitrator observed that the employer had not adduced evidence that the worker’s gymnasium activities were a substantial contributing factor to the development of his carpel tunnel syndrome. In relation to this the Arbitrator stated at [32]: “The respondent did not adduce any medical evidence to establish that the use of light weights or gym work was more likely than not a substantial contributing factor for the carpel tunnel syndrome, but then onus of proof of that lies with the applicant”. This ground of appeal has not, in my opinion, been made out since the Arbitrator clearly recognised that the onus of proving entitlement to compensation lay on the worker, and there was no legal onus on the employer.
Compensation for total incapacity:
The Arbitrator at [46] to [56] referred to the evidence of Dr Stapleton and Dr Pillemer that the worker was fit for a wide range of activities that did not place stress on his left arm or involve the use of his left wrist and hand. However, Dr Pillemer observed that the worker was unlikely to get back to gainful employment until surgery had been successfully completed. Dr Martel had certified the worker unfit for work from 24 April 2005 to 1 February 2006.
Despite the Arbitrator saying that he was satisfied on the medical evidence before him that the worker was at least partially incapacitated from the date of consultation by Dr Pillemer, namely 30 August 2005, he found that he was totally incapacitated prior to that date. The Arbitrator referred to the suitable employment reasonably accessible to the worker as being Wollongong. A complaint is made by the employer that in fact the worker lived in Sydney and the place to which one had to have regard in looking at employment reasonably accessible to the worker was not Wollongong. The employer additionally asserts that the Arbitrator erred in saying at [50] that “the onus of proving the balance of probabilities that the worker is able to earn income in some suitable employment lies with the respondent”. The Arbitrator relied on the decision of the Western Australia Supreme Court, namely Tipper. It is submitted that the Arbitrator erred in finding that the worker was totally incapacitated.
On behalf of the worker it is submitted that the Arbitrator’s findings read as a whole indicate that he was satisfied that the worker was, in effect, totally incapacitated. It is admitted that the Arbitrator erred in looking at Wollongong as the relevant place reasonably accessible to the worker for employment. It is submitted that if it were, nonetheless the factual issue would be virtually the same. It is submitted that having established a prima facie case of total incapacity, the evidentiary onus shifted to the employer to establish that such incapacity was in fact only partial. If contrary to this submission the worker were found to be only partially incapacitated, then such an employment, it is said, would only attract a gross weekly wage of $500.00 to $600.00 compared to the agreed weekly rate of $1,306.32 which the worker had been earning prior to injury.
Looking at the Arbitrator’s reasons as a whole, I am satisfied that his conclusion that the worker was effectively totally incapacitated may be supported on the evidence. The question of the employer having an onus to prove that the worker is able to earn income in suitable employment causes me some concern. The decision of the West Australian Supreme Court, in Tipper, was, as the employer correctly submits, an application by an employer to reduce weekly payments payable to the worker. The relevant passage appears to be as follows at 15:
“As applicant for the reduction and unable to reduce without an order of the Board it follows in my opinion that the onus was on it [the employer] to show the appellant’s suitability, having regard to his incapacity, for some employment and what weekly amount he would be able to earn in that employment. That onus however in my opinion does not prevent the Tribunal acting of its own initiative to inform itself of those matters … “
The decision was said not to be affected by the decisions of the High Court in J & H Timbers v Nelson (1972) 126 CLR 625 or Phillips v Commonwealth (1964) 110 CLR 347. These cases, it is said, were concerned with an application by a worker for compensation and the onus was on the applicant worker to establish his entitlement in the case of incapacity.
A similar statement to that in Tipper was made by Kirby P, as he then was, in Australian Wheat Board v Pantaleo (1984) 3 NSWLR 530 at 539:
“3.Once physical incapacity in these terms is established, the worker is entitled, prima facie, to full compensation as provided for by section 9 of the Act. The onus is on the employer to reduce the worker’s entitlement on the basis that the incapacity is partial only. However this onus may be discharged by reference to the whole of the evidence, including that which is tendered by the worker or on his behalf”
In Lawarra Mahoney P observed at 214:
“It has been suggested that, in such a case, the worker is to be seen to be totally incapacitated unless the employer shows to the contrary: cf Australian Wheat Board v Panteleo (1984) 3 NSWLR 530 at 539. It is not necessary in the present case to determine whether that is the approach to be adopted. I shall assume that the onus of proof upon the worker required that he show incapacity for the things ‘in the market’ to which ordinarily he would be expected to go.”
Although there was some authority supporting the view expressed by the Arbitrator as to the onus being on the employer, the West Australian case cited does not, in my view, support such a proposition. I am unable to see that the Court of Appeal has since Lawarra addressed this question directly. Nonetheless, I do not think that the Arbitrator has erred in finding the worker totally incapacitated. The worker’s employment was, it seems to me, substantially manual in nature and it is quite clear on the medical evidence that the worker cannot now perform such manual labour. I am not persuaded that the Arbitrator erred in finding the worker totally incapacitated and would rely on what was said by Mahoney P in Lawarra at [28] and following:
“28.The incapacity of a worker upon which the right to compensation depends is a physical incapacity for doing work in the labour market in which the employee was working might reasonably or might reasonably be expected to work: see Arnotts Snack Products Pty Limited v Yacob (1985) 155 CLR 171 at 177. That principle has been applied frequently by this Court: see e.g. Holden v Toll Chadwick Transport Ltd (1987) 8 NSWLR 222 at 226-229. As the Arnotts case illustrates, partial incapacity involves the physical incapacity for doing some but not all of such work.
29.Normally, a court in determining whether a worker is totally or partially incapacitated will, in a practical sense, ordinarily consider two questions: what is the relevant labour market, i.e. what work was the worker doing or could he reasonably be expected to do; and of that kind of work, what is he physically able to do.
30.In considering the second of these , it is necessary to bear in mind that what is in question is capacity or incapacity ‘for work’. The legislation is not concerned merely in the abstract with work or work capacities as such. It is concerned with the capacity to do work of a particular kind or kinds and in a context which will produce income. I do not wish by what I say to narrow the scope of the enquiry to be undertaken in the assessment of capacity or of compensation. But in assessing whether a worker is wholly or partially incapacitated and to what extent, the Court will ordinarily not be concerned, for example, to determine in an artificial or theoretical situation what he could do if the work available to him would allow him to stand for a time, sit for a time, cease when the pain he suffers became unacceptable, and generally work as, in his condition, he would fairly wish to work. The Court does not, as it were, spell out according to the periods of time which could be spent at work in such a way and what he could do during those periods, the extent of his capacity for work. The exercise is, in my opinion, a more practical exercise. It involves the assessment of a capacity ‘for work’ having regard to the realities of the labour market in which he is to be engaged …”
The Arbitrator clearly erred in regarding the market available to the worker as being Wollongong. It would appear to be Sydney and perhaps Wollongong as well. I accept the submissions made on behalf of the worker that there is virtually no difference between the marketplace reasonable accessible to the worker, whether it be Sydney or Wollongong. I am not persuaded that the Arbitrator erred in finding that the worker was to be compensated for total incapacity.
DECISION
The decision of the Arbitrator dated 17 February 2006 is confirmed.
COSTS
The appellant employer is to pay the costs of appeal of the respondent worker.
Anthony Candy
Acting Deputy President
14 November 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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