Brambles Australia Ltd t/as Gardner Perrott Industrial Services v Hamilton & Monier Ltd
[2006] NSWWCCPD 169
•1 August 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION: Brambles Australia Ltd t/as Gardener Perrott Industrial Services v Hamilton & Monier Ltd t/as Monier Contracting Services [2006] NSWWCCPD 169
APPELLANT: Brambles Australia Ltd t/as Gardener Perrott Industrial Services
FIRST RESPONDENT: Mark Hamilton
SECOND RESPONDENT: Monier Ltd t/as Monier Contracting Services
APPELLANT’S INSURER: Allianz Australia Workers Compensation (NSW) Limited
SECOND RESPONDENT’S INSURER Amatek Limited
FILE NUMBER: WCC 110-04
DATE OF ARBITRATOR’S DECISION: 1 July 2005
DATE OF APPEAL DECISION: 1 August 2006
SUBJECT MATTER OF DECISION: Section 9A of the Workers Compensation Act 1987; adequacy of reasons
PRESIDENTIAL MEMBER: Acting Deputy President Robert Harrington
HEARING:On the papers
REPRESENTATION: Appellant: Sparke Helmore
Solicitors
First Respondent: Monaco Solicitors
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 1 July 2005 is confirmed.
2. The Appellant (Brambles Australia Ltd t/as Gardener Perrott Industrial Services) pay the First Respondent’s (Mr Hamilton’s) costs of the appeal.
BACKGROUND TO THE APPEAL
1.On 29 July 2005 Brambles Australia Ltd trading as Gardener Perrott Industrial Services (‘Brambles’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 1 July 2005.
2.The First Respondent to the Appeal is Mark Hamilton (‘Mr Hamilton’).
3.The Second Respondent to the Appeal is Monier Limited Trading as Monier Contracting Services (‘Monier’)
4.Mr Hamilton has a back disability. An Approved Medical Specialist (AMS), Dr Kenneth Hume, has assessed Mr Hamilton’s back disability as resulting in a:
·10% permanent impairment of the back;
·10% loss of use of his right leg at or above the knee;
·5% loss of use of his left leg at or above the knee; and
·5% loss of sexual organs
5.The AMS apportioned the above losses as follows:
·8% resulting from an injury suffered by Mr Hamilton on the 17th of January 1995 whilst employed with Brambles; and
·2% resulting from an injury suffered by Mr Hamilton on the 23rd of March 1988 whilst employed with Monier.
6.Neither Brambles nor Monier have appealed the AMS’s Medical Assessment Certificate either as to quantum or apportionment in respect of Mr Hamilton’s entitlement to lump sum compensation.
7.Mr Hamilton sustained three relevant injuries:
·The first on 23 March 1988 whilst employed with Monier;
·The second on 17 January 1995 whilst employed with Brambles; and
·The third in or about October/November 2000 when Mr Hamilton bent over to put his boots on at home, a non work-related injury (‘home incident’).
8.On 17 March 2004, Mr Hamilton lodged an ‘Application to Resolve a Dispute’ in the Commission. In that Application Mr Hamilton claimed compensation from both Monier and Brambles in respect of the injuries he suffered in 1988 and 1995.
9.Mr Hamilton claimed weekly compensation payments, in respect of his injuries, from 8 October 2000 to date and continuing together with associated medical expenses.
10.Before the Arbitrator, Brambles denied liability on the following basis:
·Mr Hamilton’s incapacity resulted from the ‘injury’ in October/November 2000 whilst he was putting his boots on at home.
·If Mr Hamilton’s incapacity resulted from a work injury, then that incapacity resulted from the injury he sustained whilst working with Monier.
11.Before the Arbitrator Monier denied liability on the following basis:
·Mr Hamilton’s incapacity resulted from the ‘injury’ in October/November 2000 whilst he was putting his boots on at home.
·If Mr Hamilton’s incapacity resulted from a work injury then the incapacity resulting from the injury he sustained whilst working with Brambles.
12.Mr Hamilton’s claim was considered by a Commissioner Arbitrator on 18 January 2000 and a Certificate of Determination was issued on 1 July 2005. The Arbitrator found in favour of Mr Hamilton, the Arbitrator awarded Mr Hamilton weekly compensation payments on the basis of total incapacity from the 8 October 2000 to date and continuing. The Arbitrator found that Mr Hamilton’s incapacity resulted from the injury of 17 January 1995 whilst he was employed Brambles. The Arbitrator found that the injury of the 23 March 1988 whilst Mr Hamilton was employed by Monier was not causative in the production of Mr Hamilton’s incapacity and an award for weekly compensation payments was, therefore, entered against Brambles only.
13.It is against that decision that Brambles seeks leave to Appeal. Brambles do not dispute the Arbitrator’s decision in so far as the Arbitrator found that Mr Hamilton’s incapacity did not result from the incident on 23 March 1988, whilst he was employed with Monier. As such Monier has no role to play in this appeal and did not file any submissions on appeal.
THE DECISION UNDER REVIEW
14.The ‘Certificate of Determination’, dated 1 July 2005 records the Arbitrator’s orders as follows:
·That the Second Respondent (Brambles) pay the Applicant weekly compensation at the rate of $700 from 8 October 2000 to 7 April 2001 under s. 36 of the Workers Compensation Act 1987 (‘the 1987 Act’)
·The Second Respondent pay the Applicant weekly compensation at the maximum statutory rate for a worker with a dependent wife and two dependent children from 8 April 2001 to 1 October 2004 and thereafter, at the maximum statutory rate for a worker with a dependent wife and one dependent child in accordance with the provisions of the Act.
·Award in favour of the First Respondent (Monier) in respect of the Applicant’s claim for weekly payments of compensation.
·That the Second Respondent pay the Applicant’s expenses under section 60 of the Workers Compensation Act 1987, on production of accounts or receipts.
·The First Respondent is not liable for the payment of the Applicant’s claim under section 60 of the Workers Compensation Act 1987.
·That the Second Respondent pay the Applicant’s cost as agreed or assessed.
·The matter is certified as complex.
ISSUES IN DISPUTE
15.The issues in dispute in the appeal are whether:
a)The Arbitrator erred in failing to apply section 9A of Workers Compensation Act 1987 (‘the 1987 Act’).
b)The Arbitrator erred in failing to find that Mr Hamilton’s incapacity for work resulted from the incident which occurred at home in October/November 2000.
c)The Arbitrator erred in failing to give sufficient reasons and/or failing to consider relevant evidence.
ON THE PAPERS REVIEW
16.Section 354(6) of 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.”
17.Brambles submits that the appeal should not be dealt with on the papers and that they should be given the opportunity of presenting oral submissions. Brambles have lodged with their appeal extensive written submissions and have also included the written submissions which they prepared for the Arbitrator. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, which includes Brambles written submissions and the submission by Mr Hamilton’s legal advisers 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
18.Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
19.The appeal concerns Bramble’s liability to pay compensation in respect of Mr Hamilton’s injury. The appeal, therefore, concerns the entirety of Mr Hamilton’s entitlement to compensation, including medical expenses and weekly payments of compensation. I am, therefore of the view that the amount of compensation at issue on appeal in this matter exceeds $5,000 such that section 352(2)(a) is satisfied. As the entirety of the award is in issue I am also of the view that section 352(2)(b) is satisfied.
20.The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
21.Therefore, leave to appeal is granted.
EVIDENCE AND SUBMISSIONS
22.Mr Hamilton is 42 years of age. He commenced employment with Monier in January 1985. He was employed as a labourer/CCTV operator. His work involved the inspection of underground water and sewerage pipes.
23.On 23 March 1988 whilst employed by Monier, he suffered injury to his lower back whilst kneeling and joining CCTV camera cables together. He was either unable to work altogether or working on light duties up until 28 March 1988 when he resumed full duties. He stated in his evidence that he continued to have some pain in his lower back following this injury.
24.Mr Hamilton left employment with Monier in August/September 1989.
25.On the 10 December 1990 Mr Hamilton suffered injury to his neck in a motor vehicle accident. In the proceedings before the Arbitrator this injury did not assume importance.
26.Mr Hamilton commenced employment with Brambles in 1991. The work he carried out was similar to the work he performed for Monier. In January 1995 Mr Hamilton was raising a camera, by means of a rope from a pit. When the camera was near the top of the pit the rope slipped through Mr Hamilton’s hands. Mr Hamilton managed to regain control of the rope that was holding the camera before the camera hit the bottom of the pit. In doing so, however, he suffered an injury to his lower back. Mr Hamilton was of the view that the pain he experienced as result of the 1995 incident was more severe than the pain he experienced following the 1988 incident.
27.Mr Hamilton first sought medical treatment following the January 1995 injury on 20 January 1995, when he consulted his general practitioner, Dr William Nguyen. Mr Hamilton stated that he consulted his general practitioner because of severe back pain. Mr Hamilton only had a “couple of days” off work. When he returned to work following the incident, he continued carrying out his “normal duties” until his resignation.
28.Mr Hamilton resigned from Brambles on 18 May 1995. Between 25 May 1995 and October 2000, Mr Hamilton was employed by different companies doing similar work to the work that he performed for Brambles.
29.In his evidence, Mr Hamilton was asked questions about the condition of his back between May 1995 and January 2000. At page [12] of transcript he said the following:
“Q....between May 1995 and January 2000 you had - well, how was your
back in that period?
A.It had its moments. It definitely had its moments, when it was crook on days.”
Later, in his evidence Mr Hamilton said the following in respect the severity of his back pain during this period:
“A.Yeah, sometimes very painful.”
Mr Hamilton was then asked how his back was in the period of January 2000 through to October 2000 (at page [14] of the transcript) he said the following:
“Me back - I still had pain there. It still aggravated me, but I wasn’t doing major heavy lifting or I wasn’t bending over all day or anything like the concreters. So I could more or less support it and lift me light bit of stuff that I had to put on to the truck and sort nursed it along, I suppose.”
30.Mr Hamilton continued to work up until the 8 October 2000. In October/November 2000 Mr Hamilton, again injured his back. He said, in respect to this incident (paragraph [35] of his statement):
“In November 2000 my back gave way and I was unable to straighten up. I was bending over at the time, possibly to put my shoes on, and not lifting anything. I was in agony, and I felt a sharp pain in my lower back and running up my back. I also felt severe neck pain. I visited Dr Hein Do in Marylands, who x-rayed my back and neck.”
31.Mr Hamilton has not worked since October/November 2000 and was receiving a pension at the time of his Arbitration hearing.
32.Brambles submits that Mr Hamilton should not have been successful in his claim for compensation before the Arbitrator because the injury he sustained whilst employed by Brambles was not a substantial contributing factor to his ongoing incapacity and that the true cause of his ongoing incapacity was the ‘injury’ in November 2000 when he was putting his shoes on at home.
DISCUSSION AND FINDINGS
Section 9A of the 1987 Act
33.Brambles submits that the injury Mr Hamilton sustained in their employment on the 17 January 1995 was not a substantial contributing factor to Mr Hamilton’s ongoing injury or incapacity for work. Brambles further submits that the Arbitrator erred in law in that she did not consider and apply section 9A of the 1987 Act. Mr Hamilton is correct in his submission that section 9A was relevantly inserted into the 1987 Act by the Workcover Legislation Amendment 1996, which commenced on 12 January 1997. As section 9A was not in force at the time of Mr Hamilton’s injury with Brambles, this section has no relevance to this claim. Brambles first ground of appeal is therefore rejected.
The Arbitrator’s assessment of the evidence and/or the weight of the evidence
33.The gravamen of Bramble’s appeal would seem to be that Mr Hamilton worked on following his injury of 17 January 1995 up until the episode of November 2000 when he was at home putting on his boots. Accepting those facts, the cause of his incapacity would normally be the proximal incident, that is, the November 2000 incident.
The medical evidence
34.In order to evaluate Bramble’s second ground of appeal it is necessary to examine the medical evidence that was before the Arbitrator. The medical evidence must be evaluated in light of the fact that Brambles have not sought to appeal the Arbitrator’s failure to apportion liability between Monier and Brambles. The relevant medical evidence before the Arbitrator consisted of:
·Dr L. Vago, general practitioner - report of 26 September 2001. Dr Vago diagnosed a “traumatic soft tissue injury to the cervical and lower lumbar spinal mechanism”. The doctor attributed the pathology to the injuries on the 23 March 1998, 10 December 1990 and 17 January 1995.
·Dr R. E. Thompson, consultant surgeon - report of 26 September 2001. Relevantly, the doctor diagnosed “symptomatic L4/5 discopathy”. The doctor was of the opinion that the lumbar disc injury was caused by the incident of 23 March 1988.
·Dr G. Barold, independent medical examiner - report of 14 July 2003. Dr Barold was of the opinion that Mr Hamilton suffered from an “L4/5 disc herniation and associated symptoms of bilateral nerve root irritation”. The doctor was of the opinion that the lumbar disc injury was caused by the incident of 23 March 1988 and aggravated by the incident of 17 January 1995.
·Dr A. Searle, orthopaedic surgeon - report of 7 July 2003. Dr Searle was of the opinion that Mr Hamilton suffered from disc lesions at the lower two lumbar levels. The doctor was of the opinion that the disc lesions were caused by the incident at work on 23 March 1988 and aggravated by the incident at work on 17 January 1995.
·Dr E. D Price, physician - report of 3 March 2004. Dr Price was of the opinion that Mr Hamilton had sustained a chronic muscular-ligamentous strain of the lumbar region with a small L4/5 discopathy. The doctor attributed the pathology to the work incident in 1995, the nature and conditions of his work between 1995 and November 2000 and to the home incident in October 2000 (recorded by him to be in December 2000).
·Dr Kenneth Hume, AMS, Medical Assessment Certificate of 17 September 2000. Dr Hume was of the opinion that Mr Hamilton had sustained a disc protrusion at the L4/5 level. The doctor was the opinion that the pathology was caused by the work incidents of the 17 January 1995 and 23 March 1988. The work incident of 17 January 1995 was the more severe work incident.
35.All the relevant medical evidence before the Arbitrator supports Mr Hamilton’s contention that he has a significant back disability resulting from, at least, an injury to his L4/5 disc. The medical evidence, other than the report from Dr Price, attributed this pathology to the work incidents in January 1995 and March 1988. Dr Price attributed the pathology, in part to the 1995 work incident, to the nature and conditions of Mr Hamilton’s work and to the home incident in October 2000. The medical evidence is, in my opinion, overwhelmingly supportive of the Arbitrator’s finding that the incident of 17 January 1995 was, in part, the cause of the pathology in Mr Hamilton’s back. Further, there was sufficient medical evidence to support the Arbitrator’s finding that Mr Hamilton’s incapacity for work results from the incident of 17 January 1995 particularly when regard is had to the following facts:
·Brambles did not tender any medical evidence before the Arbitrator; and
·Brambles did not appeal the Arbitrator’s refusal to apportion liability between Brambles and Monier.
The Arbitrator’s consideration of the ‘home incident’
36.Brambles further submits that the Arbitrator failed to take into account the evidence adduced by the cross-examination of Mr Hamilton. Particularly the concessions made by Mr Hamilton that he was able to work up until October 2000 when he suffered increased back pain after bending to put on his boots at home.
37. The Arbitrator, in her decision, said the following in respect of ‘home incident’ page [38]:
“The evidence clearly supports this conclusion that the Applicant had sustained the
injuries, continued to work with ongoing pain, and then after a fairly innocuous task of putting on his boots, experienced a sudden onset of symptoms referable to his disc pathology, which was caused by the injury on the 17th of January 1995”.
38.Although the Arbitrator did not deal with the ‘home incident’ at length, the above quote must be considered in the context of the overall decision and the evidence before her. As I have already indicated, the medical evidence was overwhelmingly supportive of Mr Hamilton’s contention that he suffered a major disc injury in his lower back as a result of the 1988 and 1995 work incidents. The Arbitrator’s decision discloses a detailed analysis of the medical evidence that was before her in coming to the ultimate conclusion that, as a result of the work incidents, Mr Hamilton had suffered a lumbar disc protrusion. When the Arbitrator’s reasons in respect of the ‘home incident’ are taken in the context of her earlier finding that disc injury was caused by the work incidents, it is clear that the reasoning process is not only adequate but it is also logical. It is also clear that the Arbitrator’s opinion was that the genesis of Mr Hamilton’s disc pathology was the work incidents, and that symptoms resulting from the ‘home incident’ were a mere revelation of that underlying lumbar disc pathology.
39.The need to, and the extent to which an Arbitrator should give reasons was considered by Deputy President Fleming in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6 (‘Sandford’). Deputy President Fleming said at paragraphs [44] to [46], the following:
“The standard by which the ‘adequacy’ of reasons may be determined is relative to the nature and context of the decision made and the decision-maker. There are a number of authorities in relation to judicial review of decisions of federal administrative tribunals that support this proposition and which have relevance to a consideration of the nature of review of Arbitrators decisions in the Commission (see for example, Collector of Customs v Pozzolanic (1993) 43 FCR 280; Minister for Immigration and Multicultural Affairs v Wu Shu Liang (1996) 185 CLR 259 (‘Liang’); Minister for Immigration and Multicultural Affairs v Yusuf; (2001) 10 ALR 1).
The Commission is not a court and its objectives are to provide a dispute resolution process that is fair and cost effective for the parties to a workers compensation dispute. Proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits. The content of statements of reasons for decision reflect this process and should not on review, be “construed minutely and finely with an eye keenly attuned to the perception of error” (Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287). This is not to say that decisions should not be soundly based nor that the reasons should not be capable of conveying clearly the matters required by Rule 41 (set out above). As Kirby J observed in relation to a decision of the Refugee Review Tribunal in Liang, the decision-maker’s reasons will remain the ‘only insight into the considerations which were, or were not, taken into account in reaching the decision’ (at 291).
To succeed on the ground of ‘inadequate reasons’ it will be necessary for the Appellant to demonstrate not only that the reasons are inadequate but that the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application. The Court of Appeal in YG & GG v. Minister for Community Services [2002] NSWCA 247 (26 July 2002), Hodgson JA, said,
‘…inadequate reasons do not without more show that the decision involved error: the inadequacy must be such as to warrant the inference that the Tribunal had not exercised its jurisdiction in accordance with law: see Absolon v. NSW TAFE [1999] NSWCA 311.
…In my opinion, a question whether there is a deficiency of reasons, and whether that deficiency warrants an inference that a tribunal has not exercised its jurisdiction in accordance with law, is a matter of judgment, and in borderline cases, minds may reasonably differ’ (at paragraphs 37-38).”
40.I respectfully adopt what was said by Deputy President Fleming in Sandford. The Arbitrator’s reasons in respect of the ‘home incident’ were not inadequate, in my opinion, when considered in the context of the evidence and her overall decision.
41.Once the Arbitrator had made a finding that the injury of 17 January 1995 caused or contributed to Mr Hamilton’s lower lumbar disc injury then, consistent with this major structural damage to his back, it would be expected that he would have spontaneous increased back pain, or increases in pain caused by relatively minor or ‘innocuous’ activity such as bending to put on his boots. Applying a ‘commonsense’ test of causation to these facts (see Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452) the cause of Mr Hamilton’s incapacity for work, as found by the Arbitrator, is the underlying structural damage rather than subsequent increases in back pain caused by ‘innocuous’ incidents such as bending over to put on his boots.
42.In summary, I am therefore of the opinion that the Arbitrator’s findings were open on the evidence before her and that the Arbitrator’s reasons for her decision are adequate.
43.Mr Hamilton’s legal advisers have sought an order that Brambles pay interest on the arrears of weekly payments of compensation pursuant to section 109 of the 1998 Act. There is no indication in the papers that this matter was raised before the Arbitrator. The Arbitrator certainly did not consider this matter in her decision. The awarding of interest is a discretionary matter. Whether the discretion was exercised in favour of Mr Hamilton would depend on the evidence before the Commission. Relevant evidence may include the reasons as to why there was such a delay in the determination of Mr Hamilton’s claim and whether Mr Hamilton received social security benefits between November 2000 and the Certificate of Determination dated the 1 July 2005. In the absence of these and other matters that may touch upon the exercise of discretion, being agitated before the Arbitrator, Mr Hamilton, in my opinion, is not able to raise this matter on appeal. I therefore decline to make the order sought by Mr Hamilton.
44.Mr Hamilton’s legal advisers also seek an order that Brambles pay interest pursuant to section 110 of the 1998 Act. On the amount of compensation Brambles have been ordered to pay. As I have confirmed the Arbitrator’s Certificate of Determination dated 1 July 2005 Mr Hamilton is entitled to interest on the weekly payment of compensation that Brambles have been ordered by the Commission to pay to him unless I order to the contrary. As such, I decline to make the order sought by Mr Hamilton.
DECISION
45. The decision of the Arbitrator dated 1 July 2005 is confirmed.
COSTS
46.I order the Appellant (Brambles) pay the First Respondent’s (Mr Hamilton’s) costs of the appeal.
Robert Harrington
Acting Deputy President
1 August 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBERT HARRINGTON ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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