Bohaul Express v Kirk
[2012] WADC 105
•6 JULY 2012
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: BOHAUL EXPRESS -v- KIRK [2012] WADC 105
CORAM: CURTHOYS DCJ
HEARD: 27 JUNE 2012
DELIVERED : 6 JULY 2012
FILE NO/S: APP 93 of 2011
BETWEEN: BOHAUL EXPRESS
Appellant
AND
JAMES LEONARD KIRK
Respondent
Catchwords:
Whether a question of law involved
Legislation:
Workers' Compensation and Injury Management Act 1981
Result:
Leave to appeal refused
Representation:
Counsel:
Appellant: Mr G R Hancy
Respondent: Mr T Hammond
Solicitors:
Appellant: SRB Legal
Respondent: Slater & Gordon
Case(s) referred to in judgment(s):
Beer v Duracroft Pty Ltd [2004] WASCA 192
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Sotico Pty Ltd v Wilson [2007] WASCA 112
CURTHOYS DCJ: On 29 December 2011 a WorkCover WA Arbitration Service arbitrator dismissed the employer's application to suspend payments to Mr Kirk. The employer appeals that decision. An appeal from an arbitrator's decision to this court requires that a question of law is involved to justify a grant of leave. No question of law is involved and leave is refused.
The arbitrator's findings establish that Mr Kirk suffered an injury while working for Bohaul Express on 2 May 2010. Mr Narula, Mr Kirk's treating neurologist, diagnosed a strain of the facet joints of L5/S1. Mr Narula's evidence was that left groin pain is not uncommon in facetal strains (reasons for decision [28]). Mr Kirk's history of his symptoms is consistent with a facetal strain. Mr Kirk originally felt a stabbing pain in his left groin. After cortisone injections in or about July or August 2010 he developed a more prominent pain in his lower back region (reasons for decision [4]).
The grounds of appeal are that:
(1)the arbitrator erred in law in finding that the respondent had constant pain in his groin area and lower back since approximately 2 May 2010 in that the finding was not supported by evidence.
(2)the arbitrator erred in law in accepting the opinion evidence of Mr Narula in that the opinion was based on history of low back symptoms dating from the time of the injury and there was no evidence to support that history.
(3)the arbitrator erred in law in failing to give adequate reasons for preferring the opinion of Mr Narula in the absence of findings based on evidence on what was the history that formed the basis for his opinion.
Grounds 1 and 2 are based on a sentence in paragraph 9 of the reasons for decision. Ground 3 is based on paragraph 29 of the reasons for decision.
Ground 1
The relevant sentence in paragraph 9 is 'He (Mr Kirk) maintained that he had constant pain in his groin area and lower back since approximately 2 May 2010 when his injury occurred until the present time'.
This sentence is capable of being read in two ways. The first is that it is a sentence about constant pain. On this reading the employee had constant pain from 2 May 2010. The sources of that pain were the groin area and lower back. It says nothing about when the lower back pain emerged. The second reading, as contended for by the employer, was that Mr Kirk had constant pain in his groin area from 2 May 2010 and constant pain in his lower back from 2 May 2010.
The first reading is to be preferred because of the arbitrator's other findings that are inconsistent with the second reading. At paragraph 13 the arbitrator states 'This tends to confirm [Mr Kirk]'s evidence that his lower back pain was intermittent'. The arbitrator accepted Mr Kirk's evidence (reasons for decision [11], [32]). The second reading contended for by the employer is inconsistent with the arbitrator’s finding that the pain was intermittent. What was constant was the pain, not the source of it.
The employer was correct in arguing that the evidence did not support a finding that Mr Kirk suffered lower back pain from 2 May 2010. But, the arbitrator's reasons for decision were not based on such a finding. Ground 1 is based on the second reading which is not the fining that the arbitrator made. Since the arbitrator did not find that Mr Kirk had constant pain in his lower back area from 2 May 2010, there is no basis for ground 1.
Ground 2
Mr Narula's report dated 23 August 2011 states:
Mr Kirk presented with a history of a work related injury on 02.05.2010. It was a Sunday night and he was unloading two trucks using a forklift and physical work. He was also clearing docks. He started noticing left groin pain. He had difficulty in walking. He reported the pain was severe and stabbing in nature and brought tears to his eyes. He could not continue working. He lived close by but was unable to walk home and had to be driven home.
He reported developing pain in his left groin and buttock region. He also reported pain in the left lower back and left anterior thigh. There was also pain in the left hamstring region. He was unable to sit on the left buttock. He had difficulty lying on his back. He described difficulty in walking.
(Reasons for decision [26])
The report goes on to state:
He was reviewed on 20.02.2011. He reported ongoing symptoms of similar nature as before with left groin and left lower back spasms. He also reported some right‑sided symptoms. He remained on the same medication as before but also including Endep. He remained tender at the left L4/5.
Mr Narula's diagnosis was:
Clinically, it is my opinion that he suffers from a strain of the facet joints at the left L5/S1.
This is on the basis that he has pain in the left lower back which radiates into the left buttock region and hamstring. Additionally, he has left groin pain. The latter pain is not uncommon in facetal strains or even an underlying internal disc injury. Based on clinical grounds, I am not of the opinion that he has a disc related problem. He is tender over the L5/S1 facet area in the paravertebral region on the left side. Additionally, movements of the spine are also related to similar pain. A test injection at this site did relieve him of his pain for two days.
(Reasons for decision [28])
Mr Narula's prognosis is:
Your client was injured in May 2010. I last saw him in February 2011. He remained with significant symptoms and has gone on to develop spasms in his lower back. He was dependent upon medications.
Paragraph 29 of the reasons for decision states:
Dr Narula considered facet rhizotomies, a reasonable treatment for Mr Kirk on the basis that he was suffering a facet joint/strain. Mr Narula was of the opinion that his injury was caused by the work accident on 2 May 2010.
The history that the employee gives is of initial left groin pain and the subsequent development of pain in the left lower back and left anterior thigh. This is consistent with a diagnosis of the employee suffering a facetal strain and related symptoms manifesting itself in both lower left back, left buttock region and hamstring and left groin pain.
(Reasons for decision [36])
Mr Narula's opinion was not based on a history of low back pain dating from the time of the injury. Since the history relied upon is not as stated in ground 2 there is no basis for ground 2.
Ground 3 – Adequate reasons
The third ground is a failure to give adequate reasons for preferring the evidence of Mr Narula.
In considering the adequacy of reasons, it is important to have regard to s 213(4) of the Workers' Compensation and Injury Management Act 1981 which provides:
The reasons for an arbitrator's decision:
(a)need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and
(b)need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so, and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
The history that Mr Narula relied upon is set out above. There is ample evidence in the arbitrator's reasons to support Mr Narula's history. The arbitrator's reasons identify why Mr Kirk's evidence was accepted (reasons for decision [7] ‑ [13]). The arbitrator's reasons identify why Mr Narula's evidence was accepted and Dr Dare's rejected (reasons for decision [24] ‑ [35]).
The employer's complaint appears to be based on the second reading of the sentence in paragraph 9. If that was the correct reading of that sentence then Mr Narula's evidence of Mr Kirk's history would not have been supported by Mr Kirk. However, for the reasons stated above that it not the correct reading.
There is no basis for ground 3.
Leave to appeal
It is necessary for leave to be granted in order to appeal against a decision of an arbitrator (s 247(3) of the Act). The matter must involve a question of law.
A question of law may be involved where the arbitrator:
a)makes a finding of inference of fact that is not supported by evidence: Beer v Duracroft Pty Ltd [2004] WASCA 192 [65]
b)accepts medical evidence that has no factual basis: Beer v Duracroft Pty Ltd [79] ‑ [80]
c)prefers medical opinion that is contradicted by other medical opinion without disclosing adequate reasons for that decision: Sotico Pty Ltd v Wilson [2007] WASCA 112 [24].
To establish that there is a question of law involved it is necessary to show that an error of law or an error mixed law and fact has occurred: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3], [1].
Since the arbitrator had sufficient factual basis to justify the decision, no question of law is involved within the tests stated above. Leave to appeal is refused.
I will hear the parties as to costs.
0
3
1