Bree v IR Doyle & PA Doyle t/as Ian Doyle's Meat Service
[2009] NSWWCCPD 25
•11 March 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Bree v IR Doyle & PA Doyle t/as Ian Doyle’s Meat Service [2009] NSWWCCPD 25 | |||||
| APPELLANT: | John William Bree | |||||
| RESPONDENT: | IR Doyle & PA Doyle t/as Ian Doyle’s Meat Service | |||||
| INSURER: | Allianz Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | A2-004802/08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 15 October 2008 | |||||
| DATE OF APPEAL DECISION: | 11 March 2009 | |||||
| SUBJECT MATTER OF DECISION: | Causation; incapacity; weight of evidence, and presumption of continuance. | |||||
| PRESIDENTIAL MEMBER: | His Hon. Judge Keating, President | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Long Howland Lawyers | ||||
| Respondent: | Ellison Tillyard Callanan | |||||
| ORDERS MADE ON APPEAL: | 1. Time for leave to appeal is extended to 25 November 2008. 2. Paragraph 1 of the Certificate of Determination dated 15 October 2008, amended on 8 December 2008, is revoked and the following order made: “The Respondent pay the Applicant’s weekly compensation from 28 May 2008 to 30 July 2008 at the rate of $374.90 per week.” 3. Paragraph 2 of the Certificate of Determination is confirmed. 4. The Appellant’s entitlement to compensation from 31 July 2008 is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision. 5. The Respondent to pay the Appellant’s costs of the appeal. | |||||
BACKGROUND TO THE APPEAL
On 25 November 2008 John William Bree (‘the Appellant/ Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 15 October 2008.
The Respondent to the Appeal is Ian Ross Doyle and Pamela Anne Doyle trading as Ian Doyle’s Meat Services (‘the Respondent/Employer’).
Mr Bree is a butcher who has worked for the Respondent for 26 years in total. On 12 November 2007 he injured to his right hip and back when he twisted his upper body carrying a tray of meat and immediately experienced severe pain in his right hip, going through his groin to the back of his hip.
Mr Bree attempted to return to work after a period of two days off work but experienced increased pain and left work and has not returned to work since.
Liability was initially accepted by Allianz Workers Compensation (NSW) Ltd (‘Allianz’), the Respondent’s workers compensation insurer. Liability was however declined on 28 May 2008 on the basis that the incident on 12 November 2007, did not cause any increase in pre-existing long term back pain and any back symptoms were due to pre-existing degenerative changes. Liability for the right hip injury was declined on the basis of medical opinion from Dr Hopcroft that employment was not a substantial contributing factor to the injury and any ongoing incapacity was not as a result of the work injury.
On 24 June 2008, Mr Bree filed an Application to Resolve a Dispute alleging injury to his lower back and right hip on 12 September 2007. He also alleged injury as a result of the nature and conditions of his employment from 1 February 2007 to 12 September 2007. Mr Bree claimed weekly compensation payments from 28 May 2008 to date and continuing at a rate of $772.98 per week and medical expenses, which were not particularised. The Respondent filed a reply on 10 July 2008.
The parties were unable to settle the dispute and the matter proceeded to arbitration hearing on 24 September 2008. No oral evidence was given however both parties made oral submissions. At the conclusion of the hearing the arbitrator reserved the decision. A Certificate of Determination and written Statement of Reasons for Decision (‘Reasons’) issued on 15 October 2008. It is from this decision that Mr Bree now seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 15 October 2008, records the Arbitrator’s orders as follows:
“ 1. That the Respondent pay the Applicant weekly compensation from 28 May 2007 [sic 2008] to 30 July 2008 at the rate of $374.90, thereafter award for the Respondent.
2. That the Respondent pay the Applicant’s costs as agreed or assessed.”
The parties agreed that paragraph 1 of the Certificate of Determination contained an error in that the date 28 May 2007 should have read 28 May 2008. The Registrar corrected this error and issued an amended Certificate of Determination on 8 December 2008.
ISSUES IN DISPUTE
Mr Bree appeals the Arbitrator’s decision in respect of the award entered for the Respondent in respect of the claim for weekly compensation benefits from 1 August 2008.
The issues in dispute in the appeal are that:
a. the Arbitrator “misdirected and confused himself” in respect of the issues relevant to Mr Bree’s claim for ongoing incapacity (see Application [2.6.11]), and
b. the Arbitrator erred in law in applying a “but for” test in relation to finding whether proposed surgery was required when he should have taken the common sense approach to causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452(‘Kooragang’)).
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 appeal was initially lodged on 14 November 2008, which was more than 28 days after the date of the Arbitrator’s decision. The Registrar rejected the appeal on 17 November 2008 because there were no submissions attached to the application detailing the arguments in favour of granting an extension of time and because there were no submissions on the monetary threshold requirements under section 352(2)(a) and (b) of the 1998 Act.
On 25 November 2008, the Appellant re-lodged the appeal attaching submissions seeking an extension of time for the making of the appeal pursuant to Part 16 Rule 16.2 of the Workers Compensation Commission Rules 2006 (‘the 2006 Rules’) and also addressing the monetary thresholds under section 352(2).
The Respondent concedes that the appeal reaches the monetary threshold and I am satisfied that the monetary thresholds in section 352(2)(a) and (b) of the 1998 Act are met.
In relation to the application to extend time for the filing of the appeal, the Appellant submits:
(a) The solicitor acting for the Appellant signed the Application for Leave to Appeal on 11 November 2008.
(b) At the time of signing it, he directed his law clerk to lodge it with the Commission by facsimile transmission, given that the 28-day time limit was expiring on 12 November 2008.
(c) The Application was not sent by facsimile but sent by document exchange (‘DX’) under cover of a letter dated 11 November 2008 in the belief that the Commission would receive it the next day.
(d) The Commission did not receive the Application until 14 November 2008, three days after it was sent by DX.
(e) The document was sent through the DX the day before the time limit expired but did not arrive at the registry “within a reasonable time, which should have been one day”.
(f) There would be a demonstrable and substantial injustice if Mr Bree was to lose his right of appeal, having been awarded compensation for a five week closed period when he is unable to work and is 52 years of age and severely disabled.
The Respondent makes no submissions on the extension of time application, other than to make the following submission which is ambiguous:
“The appeal has apparently been filed within the extended period of time previously granted by the Commission.”
This submission is incorrect. The appeal when first lodged on14 November 2008, was rejected by the Registrar. It was relodged on 25 November 2008. Leave to lodge the appeal outside the 28-day period can only be granted by the Commission constituted by a Presidential member.
Part 16, Rule 16.2 (11) of the 2006 Rules reads:
“The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
Acting Deputy President Snell considered the meaning of “exceptional circumstances” in Roads & Traffic Authority of New South Wales v Cormick [2007] NSWWCCPD 220. He noted at [25]- [27]:
“25. ‘Exceptional circumstances’ are necessary to enliven the discretion contained in rule 16.2(11). Recently in Yacoub v Pilkington (Australia) Ltd (2007) NSWCA 290 the New South Wales Court of Appeal considered the phrase, in the context of rule 31.18(4) of the Uniform Civil Procedure Rules 2005. Campbell JA (with whom Tobias JA and Handley AJA agreed) said:
‘66. Another question of construction concerned “exceptional circumstances” in rule 31.18(4). In San v Rumble (No 2) (2007) NSWCA 259 at [59]-[69], I gave consideration to the expression “exceptional circumstances” in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4).
(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [2000] 1 QB 198 (at 208).
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913).
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913).
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).67. In the context of rule 31.18(4) UCP Rules, any decision about whether there are exceptional circumstances would need to bear in mind the explicit statement of objectives of a court in the management of litigation contained in sections 56-59 Civil Procedure Act 2005.’”
26. Consistent with the above passage, it would be appropriate, in deciding whether “exceptional circumstances” exist, to have regard to sections 3 and 354 of the 1998 Act. Section 3 provides:
‘3 System objectives
The purpose of this Act is to establish a workplace injury management and workers compensation system with the following objectives:
(a)to assist in securing the health, safety and welfare of workers and in particular preventing work-related injury,
(b) to provide:
• prompt treatment of injuries, and
• effective and proactive management of injuries, and
• necessary medical and vocational rehabilitation following injuries,
in order to assist injured workers and to promote their return to work as soon as possible,
(c)to provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, and payment for reasonable treatment and other related expenses,
(d) to be fair, affordable, and financially viable,
(e)to ensure contributions by employers are commensurate with the risks faced, taking into account strategies and performance in injury prevention, injury management, and return to work,
(f)to deliver the above objectives efficiently and effectively.’
27. Section 354 provides in part:
‘354 Procedure before Commission
(1)Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2)The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3)The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.’”
The Appellant’s solicitor submits that whilst he instructed the appeal be lodged by facsimile transmission it was sent to the Commission through the DX. This was not an administrative oversight but a reasoned decision on the part of his law clerk who believed, presumably through past experience, that the appeal sent through the DX on 11 November 2008 would be received by the Commission on 12 November 2008, within the 28 day time period for lodging appeals. However, for unexplained reasons, the document was not received by the Commission until 14 November 2008, two days after the 28-day period. The Registrar through her delegate rejected the appeal shortly thereafter due to an absence of submissions seeking an extension of time in which to lodge the appeal and secondly due to a failure to attach submissions on the monetary threshold issues. The appeal was promptly relodged on 25 November 2008 with submissions addressing both issues attached.
I have no reason to doubt the Appellant’s submission that it was a legitimate expectation that documents placed on the DX would, in the ordinary course of events, be received by the Commission the following day. For the documents to have taken three days to reach the Commission in my view constitutes something that was “out of the ordinary course or unusual”.
Taking these matters and the Commission’s statutory objectives and procedures into account, I am satisfied “exceptional circumstances” exist.
Having found exceptional circumstances to exist, I must now consider whether loss by the Appellant of his right to seek leave to appeal “would work demonstrable and substantial injustice”, and whether the discretion conferred by Part 16 rule 16.2(11) should be exercised.
The following passage from the judgment of McHugh J in Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 has frequently been applied in Presidential decisions dealing with this discretion:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.” (at 480)
In considering whether an extension should be granted, for the purpose of doing justice between the parties, it is necessary to consider the prospects of success of the appeal. For reasons that appear below, in my view, the appeal has good prospects of success. Taking this into account and the range of discretionary factors discussed in Gallo, and the absence of any objection to the discretion being exercised in favour of the Appellant, I am of the view that the interests of justice require that I extend time to appeal.
Time to appeal is extended to 25 November 2008, and leave to appeal is granted.
FRESH EVIDENCE OR ADDITIONAL EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal.
Where a party seeks leave to rely on fresh or additional evidence in relation to the decision appealed against, that party must serve a copy of the fresh or additional evidence on the other parties to the dispute when serving the Application or Notice of Opposition.
On 11 February 2008, I arranged a teleconference with Mr Dodd of counsel who represented Mr Bree, and Mr Stanton, solicitor, who represented the Respondent, to attempt to clarify what WorkCover medical certificates from Dr Naser’s surgery had been tendered at the arbitration hearing, because a number of these certificates in the Commission file were incomplete and unsigned.
At the teleconference the parties’ representatives agreed that signed copies of the relevant certificates existed, and they undertook to forward copies of those certificates to the Commission with an application to admit fresh, additional or evidence in substitution of evidence tendered at the arbitration hearing.
At the conclusion of the teleconference the following Direction was issued to the parties:
“On or before 4 pm on 18 February 2009 and pursuant to section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 and in accordance with Practice Direction No. 6, the parties are granted leave to file any application to admit any fresh or additional evidence, or evidence in substitution of, evidence tendered at the arbitration hearing.”
On 18 February 2009, the Appellant’s solicitor forwarded to the Commission a letter with attached documents purporting to be an application for the admission of additional evidence on appeal. The documents attached to the letter were listed as follows:
· Chronology
· Statement of Ms Ingrid Allen dated 18 February 2009
· WorkCover and Centrelink certificates “dated variously” from 13 September 2007 to 6 November 2008
The WorkCover medical certificates attached to the Appellant’s letter dated 18 February 2008, were the photocopies of the signed and completed WorkCover certificates of the following dates:
16 October 2007(x2), 6 November 2007, 20 November 2007, 18 December 2007, 5 February 2008, 3 March 2008 and 21 May 2008.
Also attached were WorkCover medical certificates dated 31 March 2007, 27 November 2007 and 24 April 2007, which were unsigned and merely duplicate copies of the unsigned certificates already on the Commission’s file.
In addition to the WorkCover certificates referred to above, there were five Centrelink medical certificate dated 27 June 2008, 30 July 2008, 28 August 2008, 30 September 2008 and 6 November 2008 and two facsimile transmission sheets from Allianz addressed to Dr Nasar dated 21 September 2007 and 8 November 2007, upon which the doctor had written responses.
The letter dated 18 February 2009, to which these WorkCover medical certificates and other documents were annexed, did not comply with the requirements of Practice Direction No. 6 and, in particular, no submissions were advanced to support the application seeking leave to admit these documents on appeal.
A further Direction was therefore issued to the parties on 19 February 2009 in the following form:
“This matter was listed for a teleconference before His Hon. Judge Keating on 11 February 2009, because it was apparent that the WorkCover medical certificates on the Commission file did not accord with the certificates identified at page 10, lines 50 –58 and page 11, lines 1- 16 in the transcript of the arbitral proceedings.
The parties were given the opportunity to clarify the particular WorkCover medical certificates tendered at the arbitration hearing on 24 September 2008.
“After the teleconference, a Direction was issued dated 11 February 2009, as follows:
‘On or before 4 pm on 18 February 2009 and pursuant to section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 and in accordance with Practice Direction No. 6, the parties are granted leave to file any application to admit any fresh or additional evidence, or evidence in substitution of, evidence tendered at the arbitration hearing.’
On 18 February 2009 the Commission received a letter from the Appellant’s solicitors, which enclosed a number of documents ‘for filing in this matter’. The documents attached to the letter were listed as follows:
(1)Chronology
(2)Statement of Ms Ingrid Allen dated 18 February 2009
(3)WorkCover and Centrelink certificates “dated variously” from 13 September 2007 to 6 November 2008
This letter does not comply with Practice Direction No.6 in respect of the making of an application seeking leave to admit of fresh and/or additional evidence on appeal. In particular it fails to include, as required:
· a brief outline of the fresh or additional evidence and the reasons why it was not given in proceedings before the Arbitrator
· submissions on why the fresh or additional evidence should be admitted, or rejected as the case may be.
·submissions on, whether:
oit can be demonstrated that the evidence could not with reasonable diligence have been obtained by the party and tendered in proceedings before the Arbitrator;
othe evidence is credible;
othere is a high degree of probability that there would have been a different decision if the evidence had been admitted at the arbitration, and/or
oit is just to admit the evidence in all the circumstances of the individual case.
In the circumstances the following further directions are made:
1.On or before 4 pm on 24 February 2009 and pursuant to section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998, the Appellant is to file and serve his application to seek leave to admit fresh and/or additional evidence on appeal in a form that complies with Practice direction No.6.
2.On or before 4 pm on 27 February 2009 the Respondent may file and serve any submissions in response to the Appellant’s application seeking leave to admit fresh and/or additional evidence on appeal.”
On 24 February 2009, the Appellant forwarded a further letter including submissions in support of the application seeking leave to admit evidence on appeal.
Those submissions confirmed that at the arbitration hearing leave was granted to admit into evidence the clinical notes of Dr Naser dated from 23 June 2008, 27 June 2008 and 30 July 2008 and WorkCover medical certificates dated 16 October 2007, 20 November 2007, 27 November 2007 and 18 December 2007.
I note however from the transcript of the arbitration hearing (pages 10 and 11) that leave was granted to the Appellant to tender two separate bundles of WorkCover medical certificates.
The first bundle were signed certificates dated 18 September 2007, 26 September 2007, 2 October 2007 and 5 October 2007. Copies of these signed certificates are retained on the Commission file and are therefore not the subject of this application.
The second bundle were certificates dated 16 October 2007, 6 November 2007, 27 November 2007, 18 December 2007, 5 February 2007, 3 March 2008, 31 March 2008, 24 April 2008 and 21 May 2008. The copies of the certificates in the second bundle retained on the Commission file were not signed or fully completed by the doctor. It is these certificates that were the subject of the teleconference on 11 February 2009.
Whilst there was discussion at the arbitration hearing that the preferable course was to tender signed copies of the certificates (transcript page 11, lines 5-20) it is not clear from the transcript if the parties had available signed copies of all the relevant certificates or not, or if attempts were made to tender signed copies of the certificates. If signed copies were available then an administrative error may have occurred in that the Arbitrator was provided with what appears to be the doctor’s file copy of the WorkCover medical certificates (dated 16 October 2007 to 21 May 2008), extracted from Dr Naser’s clinical records. Whilst they contain the formal information they have omitted the doctor’s hand written statements as to Mr Bree’s fitness for employment and were unsigned.
The WorkCover medical certificates attached to the Appellant’s letter dated 18 February 2009, are photocopies of the signed and completed WorkCover certificates of the following dates:
16 October 2007 (x2), 6 November 2007, 20 November 2007, 18 December 2007, 5 February 2008, 3 March 2008 and 21 May 2008.
Whilst the submissions contained in the letter dated 24 February 2009 do not expressly make application for leave to admit these certificates in substitution for the unsigned certificates of the same dates, I am satisfied, given the discussion at the teleconference and the Respondent’s co-operation in offering to assist the Appellant locate the signed copies (transcript of teleconference page 6, lines 40-45) and the Respondent’s consent to the substitution of these certificates (transcript of the teleconference, page 6, line 49-50), that it is appropriate that I admit on appeal the certificates referred to in [51] above as evidence in substitution for the unsigned and incomplete certificates of the same dates as retained on the Commission file.
In addition to the WorkCover certificates, discussed above, the Appellant, under cover of the letter dated 18 February 2009, annexed five Centrelink certificates dated 27 June 2007, 30 July 2008, 28 August 2008, 30 September 2008 and 6 November 2008, a chronology, a statement of Ms Allen and the two facsimile transmission sheets from Allianz.
By letter dated 24 February 2009, the Appellant submitted that leave should be granted to admit the Centrelink certificates as fresh and/or additional evidence on appeal. No application was made to admit the chronology, statement of Ms Allen or the Allianz facsimile transmission sheets.
None of these documents were in evidence before the Arbitrator.
These documents were available at the arbitration. Dr Naser produced them with the other medical records, from which the Appellant’s counsel tendered the progress notes and WorkCover medical certificates. The Appellant submits that they were not tendered at the hearing, but it is critical that the Centrelink certificates be admitted:
“Because the Arbitrator relied upon that entry [Dr Naser’s clinical notes dated 30 July 2008] in his Determination, it is critical that the Certificates being issued by Dr Nasser immediately before 30 July 2007 [sic-2008]; on 30 July 2008 and following be admitted into evidence as they clearly contradict the interpretation and weight given to that entry by the Arbitrator.” (Paragraph 12, letter dated 24 February 2009)
The Respondent has not filed any submissions in reply to the Appellant’s application seeking leave to admit fresh and/or additional evidence on appeal.
Dr Naser completed the first three of these five certificates, and Dr Ahmed completed the later two certificates.
In the first three certificates, Dr Naser certified Mr Bree unfit for work from 27 June 2008 to 29 September 2008. Under the heading “diagnosis”, is typed, ‘right hip osteoarthritis’.
In the certificate dated 30 September 2008, Dr Ahmed also diagnosed right hip osteoarthritis. He however also noted that the symptoms commenced on 12 September 2007, further he certified Mr Bree permanently unfit for work.
The Court of Appeal considered the introduction of fresh and /or additional evidence in Haider v JP Morgan Holdings Aust Ltd t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158, (2007) 4 DDCR 634 (‘Haider’). Basten JA referred to a number of authorities including Akins v National Australia Bank (1994) 34 NSWLR 155 (‘Akins’). At [160] in Akins, Clarke JA, with whom Sheller JA and Powell JA agreed, identified three conditions that needed to be met before “fresh evidence” could be admitted:
“These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.”
However, in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 Heydon JA stated at [15]:
“Even if the three tests stated in the Akins case are applicable and are not satisfied, a question remains: is it just to admit the further evidence in this case?”
Deputy President Roche in PCR Plaster Settings Pty Ltd v De Brito (No 3) [2008] NSWWCCPD 82, held at [35]:
“35. In considering an application to rely on fresh evidence or further evidence on appeal, the Commission must balance two competing requirements: the public interest that litigation should not continue indefinitely against the need to ensure that justice is done in all the circumstances of the case. In balancing these matters, the Commission must also keep in mind its statutory duty to act ‘according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms’ (section 354(3) of the 1998 Act).”
Whilst these Centrelink certificates provide some evidence that Mr Bree continued to be certified incapacitated for work from 27 June 2008, given their minimal and incomplete medical content, they are of limited probative value in the assessment and determination of whether Mr Bree’s incapacity resulted from the work injury.
Further, in light of my decision to uphold the appeal and remit the matter to a new arbitrator for determination afresh, it is not necessary, in the interests of justice, that these documents be admitted into evidence on appeal. I am able to determine the merits of the appeal without these documents in evidence.
I therefore decline to admit on appeal the five Centrelink certificates referred to in [53] above. I also decline to admit into evidence the chronology, statement of Ms Allen dated 18 February 2009 and the two facsimile transmission sheets from Allianz dated 21 September 2007 and 8 November 2007.
I confirm that I admit into evidence the WorkCover medical certificates dated 16 October 2007 (x2), 6 November 2007, 20 November 2007, 18 December 2007, 5 February 2008, 3 March 2008 and 21 May 2008.
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 a formal hearing, and that this is the appropriate course in the circumstances.
EVIDENCE
Mr Bree prepared and relied on a signed statement dated 27 May 2008. He is 53 years of age. He is a retail butcher by trade and employed by the Respondent in Gunnedah.
After completing his trade certificate, Mr Bree worked for three months at the Gunnedah Abattoirs and then worked for the next 14 years as a butcher with the Respondent. He worked the next 18 months as an underground miner. After finishing as a miner, Mr Bree again took up work as a butcher at another butchery in Gunnedah for 18 months and then recommenced working with the Respondent where he has been working for the last 12 years. He confirmed that he had worked a total of 26 years with the Respondent.
The work was heavy, requiring him to lift beef, pig and lamb carcasses. The beef and pigs weighed between 40kg and 60 kg and the lambs weighed 20kg. The shop and the cool room were cramped and the lifting activities required twisting and crouching. The cool room was 1 to 2 degrees Celsius and the rest of the shop was 16 degrees. The floors were cement and often slippery.
When he was 28 years old Mr Bree first injured his right knee at work with the Respondent, after slipping on a wet tiled floor. He underwent arthroscopic repair of the knee. Whilst he cannot recall how much time he had off work, his weekly compensation and medical benefits were paid. Since the injury his knee aches and he also experienced backaches.
Whilst working as a miner he sustained a back injury after lifting heavy steel cables. This required he take a few days off work after which he had no further trouble.
On 12 September 2007, Mr Bree turned to place a tray of meat in the window, turning his body while his feet remained fixed. As he twisted, he felt severe and excruciating pain in his right hip going through his groin to the back of his hip. After this incident he had difficulty walking and left work to attend a doctor. He was given pain medication and a couple of days off work. When he returned to work five days after the injury, after one hour at work, he felt the same excruciating hip pain when he turned to pick up a packet of meat. He again attended the doctor and was referred for x-rays and certified unfit for work.
X-rays showed degenerative changes at the L4 and S1 and osteoarthritis of the right hip joint. He was referred to orthopaedic surgeon, Dr Doig, who advised him to have a hip replacement. Because he was in constant pain and off work, Mr Bree decided to proceed with the hip replacement surgery.
Dr Doig requested approval for the surgery from Allianz. Dr Hopcroft examined Mr Bree at Allianz’s request.
Based on Dr Hopcroft’s opinion, Allianz declined liability for treatment expenses and weekly compensation payments after 28 May 2008.
Mr Bree confirmed that he was certified unfit for work until 24 June 2008. He is unable to engage in the recreational activity of lawn bowls because of hip pan. Walking any distance “aggravates the injury”. He cannot lift anything heavy, and finds squatting and kneeling difficult. His sleep is disturbed. He denied Dr Hopcroft’s assertion that he was an alcoholic and a chain smoker.
Dr Lewis reported on the x-ray of the lumbar spine and heels in a report dated 14 September 2007. The report notes a history of back pain, right sciatica and heel pain. The doctor recorded the presence of degenerative changes at the L4 to S1 levels, and “quite marked” narrowing of the interspaces. The lower lumbar and sacro-iliac joints were well preserved and there were tiny calcaneal spurs bilaterally in the heels.
Dr Doig, in a report dated 15 October 2007, addressed to Dr Naser, Mr Bree’s general practitioner, noted that he examined Mr Bree who presented that day with a history of a recent flair up of right buttock and groin pain when he twisted awkwardly at work. The pain failed to settle over four weeks. X-rays showed moderate osteoarthritis of the right hip joint. The doctor stated “I expect that he has simply aggravated his pre-existing condition”. He noted that Mr Bree was heading towards a total hip replacement.
The x-ray to which Dr Doig referred is not in evidence in these proceedings.
In a report addressed to Allianz dated 19 November 2007, Dr Doig sought approval to proceed with a total hip replacement. He noted that the Worker alleged to have sustained a “nasty injury” to his hip when he twisted lifting heavy bags of bones. Mr Bree reported no prior injuries or problems with his hip and the doctor recorded that “Mr Bree puts his arthritis down to this event”.
Dr Doig prepared a further report addressed to Allianz dated 5 December 2007. He recorded a history of lifting heavy bags of bones at work and twisting. He confirmed that Mr Bree did not complain of low back pain or symptoms of radiculopathy and there was no history of pre-existing problems in his back or hip. X-rays showed significant degenerative changes in his right hip consistent with osteoarthrisis and the lumbo-scaral spine showed early degenerative changes.
The doctor concluded that in his opinion the twisting injury in September 2007 aggravated pre-existing primary osteoarthirits of the right hip joint. The doctor also stated that his hip was asymptomatic prior to the incident. Further he noted at page one of his report:
“It is therefore likely that Mr Bree would require a total hip replacement as a course of [sic] degenerative condition, regardless of the incident described.”
At the arbitration hearing, Dr Naser’s clinical progress notes for the consultation dates of 23 June 2008, 27 June 2008 and 30 July 2008 were tendered on behalf of Mr Bree.
The progress note for 23 June 2008 reads:
“presented for review, not sure, what is going on.
Plan: call insurance to find out
Mr Bree will let me know about the on going work cover certificate.
Allianz contacted: no response.”
The progress notes for 27 June 2008 refers to Mr Bree presenting for a Centrelink certificate, noting that Dr Naser would call Dr Doig in relation to the waiting list for hip replacement surgery and that Mr Bree was prescribed Brufen tablets for pain management.
The progress note for 30 July 2008 recorded that Mr Bree presented for review, “right hip OA: in [sic] improving”, Centrelink certificate provided for one month and that Dr Naser would contact Dr Doig about the hip replacement.
A referral from Dr Naser to Ms Barnes, physiotherapist, dated 18 September 2007 requested physiotherapy review for Mr Bree who presented with lower back pain and had x-rays showing degeneration at L4 to S1.
The WorkCover certificates date from 18 September 2007 to 21 May 2008. The certificates dated 18 September 2008, 26 September 2007, 2 October 2007 and 5 October 2007, refer to a diagnosis of back pain with pain radiating toward the right leg and certify Mr Bree unfit for work from 17 September 2007 to 16 October 2007.
The two certificates dated 16 October 2007, certified Mr Bree unfit from 17 October 2007 to 23 October 2007, and from 24 October 2007 to 6 November 2007, as a result of low back pain and right hip pain.
The certificates dated 6 November 2007 and 20 November 2007 certified Mr Bree unfit for work from 7 November 2007 to 27 November 2007.
An unsigned certificate dated 27 November 2007 referred to Mr Bree being fit for suitable duties from 28 November 2007 to 18 December 2007. The certificate is incomplete in that no specific duties and capabilities are nominated, with the exception of “nil” appearing beside lifting, walking and standing.
The certificate dated 18 December 2007, which is signed, certified Mr Bree fit for suitable duties limited to no lifting, walking 10 metres and standing up to 15 minutes for the period 19 December 2007 to 6 February 2008.
Two signed certificates dated 5 February 2008 and 3 March 2008 certified Mr Bree unfit for work for the period 6 February 2008 to 4 April 2008.
The next two certificates dated 31 March 2008 and 24 April 2008 are both unsigned but certify Mr Bree to be unfit for work from 24 April 2008 to 24 May 2008. The certificate dated 21 May 2008, which is signed the doctor, certified Mr Bree unfit for work for the period 24 April 2008 to 24 June 2008.
The Respondent relies on one medico-legal report from Dr Hopcroft dated 11 January 2008. Dr Hopcroft recorded a history that on 12 September 2007, Mr Bree was lifting a paper bag of bones weighing 1.5 kg when he developed stabbing pain in his right buttock region. He attended at his general practitioner and x-rays were taken of his lumbar spine and heels. He was treated with six episodes of physiotherapy during which time his right hip pain was severely aggravated when traction was applied to his right leg. Dr Naser referred him for hip x-rays on 3 October 2007. Dr Hopcroft quoted from the x-ray report as follows:
“osteoarthritic changes around the right hip joint, with joint space narrowing, especially superiorly, subchondral sclerosis and marginal osteophytes
The left hip joint demonstrates only minor degenerative change
There are no further diagnostic features”.
The doctor noted that the worker was referred to Dr Doig who listed him immediately for a right hip joint replacement.
Dr Hopcroft was of the opinion that Mr Bree exhibited signs of alcoholism and he was strongly of the opinion that he was suffering from gout (hyperuricaemia) in his hip. He said that if Mr Bree was suffering from gout, he should be treated for it to bring the condition under control. He also considered that the “low grade osteoarthritis” in his right hip could be treated with hydrocortisone injection. With such treatment, Dr Hopcroft opined that Mr Bree would be able to return to work “in the very short term”.
Dr Hopcroft strongly rejected the suggestion that Mr Bree undergo a total hip replacement, noting that he was only 49 years of age and believed that his condition should be medically managed for as long a possible, although as his arthritic condition progressed he could ultimately require a total hip replacement.
ARBITRATOR’S REASONS
The Arbitrator identified that the issues before him where:
(a) whether the Applicant sustained an injury to his back and right hip in the course of his employment and whether the employment was a substantial contributing factor to any such injury for the purposes of section 9A of the 1987 Act;
(b) whether the Applicant had any ongoing impairment as a consequence of any compensable injury to his back or right hip, and
(c) to what, if any, weekly benefits the Applicant was entitled in respect of any compensable injury.
The Arbitrator accepted the Worker’s evidence as to how the incident occurred and found that it occurred when he rotated the upper part of his body whilst holding a parcel of meat/bones.
Although the Appellant alleged injury as a result of the nature and conditions of employment, no evidence was led before the Arbitrator on that issue. Although clearly the Appellant had undertaken quite heavy physical work for a lengthy period of time, the case was not argued on the basis that any injury arose from the general nature and conditions of his work and hence no findings were made on that issue.
Mr Dodd, counsel for the Appellant, conceded that no claim was pressed in relation to any incapacity relating any injury to the Appellant’s back, beyond 28 May 2008 when payments of compensation ceased.
The question the Arbitrator then went on to consider was whether the Appellant’s employment was a substantial contributing factor to the injury and whether the incapacity, if any, continued beyond 28 May 2008 as a result of the injury to the right hip.
The Arbitrator took into account the opinions of Dr Hopcroft, who believed Mr Bree suffered from an episode of gout in his right hip, which had been aggravated by the work incident. He also considered the opinion of Dr Doig, who opined that the work incident caused an aggravation of pre existing osteoarthritis of the right hip. The Arbitrator considered and accepted the Worker’s evidence that he was asymptomatic prior to the incident on 12 September 2007. Taking all of those matters into account he found that the incident was “causative of some degree of injury to the Applicant’s back and right hip” (Reasons [28]).
In the context of his analysis of the evidence in relation to incapacity, the Arbitrator considered whether the hip replacement surgery recommended for the Appellant was treatment that had been rendered necessary as a direct result of the work incident or whether the surgery might have been deferred in the absence of the injury. Ultimately, the question was never answered by the Arbitrator, however, his treatment of that issue has been the subject of submissions on appeal, which I shall come to in due course.
The Arbitrator noted that no recent medical evidence had been tendered which was of any real assistance in determining the question of incapacity. He relied on the progress notes of the Appellant’s general practitioner, Dr Naser, who continued to treat him. He noted that in October 2007, Dr Naser had recorded significant osteoarthritis in the right hip. The Arbitrator relied heavily on the progress note dated 30 July that referred to improvement in the osteoarthritis in the right hip.
The Arbitrator found, on balance, that, given the Appellant’s previously asymptomatic state and the immediate onset of symptoms following the incident of September 2007, and his complaints of constant pain thereafter, he suffered from the effects of an the aggravation of an underlying osteoarthritic condition in the right hip as a consequence of the incident of 12 September 2007.
However, in the absence of any other evidence the Arbitrator relied upon the progress note of 30 July 2008 to find that at about that date the effects of the aggravation had ceased. He found that any ongoing incapacity beyond 30 July 2008 was due to the underlying osteoarthritic condition (Reasons at [39]).
SUBMISSIONS ON APPEAL
Appellant’s submissions
The Appellant filed submissions with the Application and also filed submissions in reply on 23 January 2009, after service of the Respondents Notice of Opposition. The submissions are summarised below.
Having found that the Worker suffered injury to his back and right hip, and that he was asymptomatic before the injury, the Arbitrator was required to determine whether Mr Bree suffered an incapacity from 1 August 2008 and, if so, whether that incapacity was causally related to the injury.
There was no evidence before the Arbitrator that the possible improvement in Mr Bree’s symptoms, as recorded in the treating doctor’s progress notes for 30 July 2008, meant that his symptoms had ceased such that the aggravation caused by his injury had ceased, as was found by the Arbitrator at [39] of his Reasons.
A finding by the Arbitrator of “some possible improvement” was not probative of improvement or cessation of the effects of the work injury.
There was evidence before the Arbitrator, which he accepted, that:
(a) Mr Bree’s fitness for work had not improved since 28 May 2008, and
(b) Mr Bree had not worked since 13 September 2007 due to being certified unfit for work and, since at least December 2007, he had been waiting to undergo surgery on his hip.
The Arbitrator erred in law in posing the question of whether the surgery proposed would have been required “but for” the incident [work injury] (see [30] of his Reasons). The correct question to be answered was whether the current incapacity resulted from the injury, not whether the need for surgery resulted from the injury. The proper test is the commonsense approach to causation (see Kooragang).
Respondent’s submissions
Without expert evidence as to the cause of the Worker’s ongoing incapacity it was appropriate for the Arbitrator to, in part, deal with the issue by considering whether the injury was causative of the Appellant’s immediate need for surgery.
The Arbitrator placed weight on the clinical entry of 30 July 2008, noting a degree of improvement, in coming to the factual determination that the effects of the aggravating injury on 12 September 2007 had ceased as at that date. That evidence was probative and a degree of improvement is consistent with a resolving effect. Whilst the clinical note was not clear evidence that the effects of the injury had ceased it was evidence consistent with the conclusion that the effect of the injury had ceased.
In the presence of an underlying constitutional condition of osteoarthritis, the existence of ongoing symptoms is not inconsistent with a finding that aggravation has ceased. An improvement in symptoms is consistent with the effects of the aggravation having passed.
The Commission as a specialist tribunal can draw inferences from facts, which an ordinary tribunal may not. This ability extends to the determination of medical issues (see MMI Workers Compensation (NSW) Ltd v Kennedy & Ors (1993) 9 NSWCCR 482 at 489).
In relation to the allegation that the Arbitrator used the words “but for” as an incorrect legal test, the Respondent submits that the Arbitrator was not using the words “but for” as a statement of what legal test he was applying. It was the absence of clear medical opinion that led him to deal with the matter as he did.
DISCUSSION AND FINDINGS
The issues on appeal in this case fall within a narrow compass. The principal ground of appeal concerns the Arbitrator’s finding that as of 30 July 2008, Mr Bree was not entitled to weekly compensation benefits because the effects of his aggravation injury had ceased by that date. The Appellant also submits that the Arbitrator misdirected himself as to the correct legal test to be applied in assessing whether Mr Bree was incapacitated as a result of the work injury by considering the Worker’s need for surgery in the context of his assessment of incapacity and the causal connection between his incapacity and the work injury.
There is no challenge to the Arbitrator’s finding that the Appellant suffered an injury to his back and right hip during the course of his employment with the Respondent. Nor is there any contest that the requirements of section 9A of the 1987 Act have been satisfied. The parties’ legal representatives confirmed those matters with me during the teleconference on 11 February 2009.
The Arbitrator acknowledged the concession made by Mr Bree’s counsel, that Mr Bree’s back injury did not cause any incapacity after 28 May 2008, the date that Allianz ceased weekly compensation payments. The issue before the Arbitrator, and also on appeal, concerns whether Mr Bree has an ongoing incapacity for work resulting from the injury to his hip on 12 September 2007.
Turning firstly to the Appellant’s submission that, by posing the question of whether the surgery proposed would have been required “but for” the work injury in [30] of his Reasons, the Arbitrator demonstrated that he applied the wrong legal test in determining whether the Worker’s incapacity resulted from the injury.
At [30] of his Reasons the Arbitrator stated:
“The issue then is what ongoing incapacity the Applicant has as a result of the injury to his right hip. It is clear from the medical reports that the Applicant has an “underlying osteoarthritic condition in his right hip”. It is further clear that the Applicant proposes to have a hip replacement and is presently waiting for the proposed surgery on the public hospital waiting list. The need for the hip replacement was noted by Dr Doig in his report of 5 December 2007 where he indicated the surgery would be required “as a course of degenerative condition, regardless of the incident described”. The question that is unanswered in that report is when the surgery would have been required, that is, is the surgery required now due to the occurrence of the incident or but for the incident would it have been likely that the need for the surgery would have been deferred.”
I agree that “but for” is not the correct legal test for determining whether incapacity results from a work injury. The correct test is that set out in Kooragang at 463-4. “But for” is also not the correct test to be applied in determining liability under section 60 in relation to medical treatment (see Bielecki v Rianthelle Pty Ltd [2008] NSWWCCPD 53 at [18]-[20]).
Although the Arbitrator did not expressly refer to the authority of Kooragong, I am satisfied that the first sentence in [30] of his Reasons indicates he was aware of the correct legal test to apply in determining the casual relationship between incapacity to the work injury. Unfortunately the remainder of [30] of his Reasons creates an ambiguity, in that, he then proceeded to briefly analyse the report of Dr Doig, and poses a question about the need for medical treatment. Given he did not ultimately answer this question and determined the Appellant’s claim for compensation on the basis of Dr Naser’s clinical notes, this submission is irrelevant.
The Appellant’s other submissions deal with the basis of the Arbitrator’s determination. Mr Bree submits that there was no evidence to support the Arbitrator’s finding that the aggravating effects of the work injury had ceased by 30 July 3008 and that Dr Naser’s clinical notes dated 30 July 2008, recording an improvement in his symptoms, were not probative of the cessation of the effects of the work injury.
The Arbitrator’s task of determining the issue of incapacity as arising from Mr Bree’s right hip injury was indeed a difficult one. Apart from WorkCover medical certificates and progress notes from Mr Bree’s general practitioner, Dr Naser, no other evidence was tendered by either party to address the question of whether the effects of the aggravating injury continued and were causative of any ongoing incapacity and the extent of that incapacity.
I am satisfied that the Arbitrator carefully weighed the medical evidence tendered by both parties. For the Appellant, Dr Doig, clearly expressed the opinion, that the twisting injury sustained by the Appellant aggravated a pre-existing problem of primary arthritis in his right hip. He noted that there were no signs of avascular necrosis in the femoral head and concluded that the Appellant probably had pre-existing primary arthritis in the right hip joint.
Dr Doig made no statement concerning incapacity except to note in his brief report of 5 December 2007, “It is my opinion that Mr Bree’s problems are arising from his degenerative hip joint, which should be the primary problem on his workers compensation certificate.” I infer from that, that he was accepting, at least as of 5 December 2007, that some incapacity for work existed and resulted from the work injury. Had he thought otherwise I can see no logical reason why he would have been making reference in his opinion to the cause of Mr Bree’s problems, for the purposes of workers compensation.
A noted above at [91] to [97], the WorkCover medical certificates issued by Dr Naser between 18 September 2007 and 21 May 2008 consistently certified the Appellant unfit for work. Curiously, in the midst of the period between the 28 November 2007 and 6 February 2008, the certificates indicate that the Appellant was fit for “suitable duties”. The certificate issued on 18 December 2007 restricted Mr Bree to walking up to ten metres, standing up to fifteen minutes and placed an additional restriction, that is “minimal twisting and turning during walking” on his activities. Such restrictions indicate a significant level of incapacity. There is no evidence that the Mr Bree made any attempt to seek suitable light duties during this time. The last medical certificate issued on 21 May 2008 certified the Appellant totally unfit for work until 24 June 2008.
Dr Hopcroft, in contrast, was firmly of the view that the Appellant’s symptoms were caused by gout, a condition entirely unrelated to his employment. His concluding remarks were in the following terms:
“Overall I do not believe Allianz insurance is in any way responsible for this patient’s ongoing medical treatment requirements and that simple current medical management would see him return to the workforce very quickly which is the patient’s express desire.”
In that context, it is hardly surprising that the doctor did not address the question of ongoing incapacity. However, Dr Hopcroft was confident that if the gout was treated Mr Bree would be able to resume work. Dr Hopcroft noted, however, that the Appellant continued to complain of pain in his right groin with some clicking at the site and noted that he was putting more pressure on his left leg, which was causing some minor pain in the left hip joint area. He noted that the Appellant had low back pain for many years with some occasional low-grade right-sided sciatica. Whilst Dr Hopcroft believed that the Appellant’s acute symptoms related to gout, he conceded that there was also evidence of low grade arthritis in the right hip joint.
Both Dr Hopcroft and Dr Doig were in agreement that the Appellant would ultimately require a right hip joint replacement. However, Dr Hopcroft was strongly of the view that given Mr Bree was only 49 years of age, such a procedure should be delayed as long as possible.
In his statement of evidence, dated 27 May 2008 the Appellant stated that he has suffered constant pain in his hip every day since the work incident. The intensity of the pain was variable from 2 out of 10 on a good day to 9 out of 10 on a bad day. The pain sometimes radiates down his leg. Walking any extended distance aggravated his injury. He had trouble getting in and out of cars. He had difficulty mowing his lawn and now seeks help to keep it cut. Any activity involving twisting and turning aggravated his pain. He stated that he was unable to run or lift anything heavy. He expressed difficulty squatting or kneeling. The Appellant stated that he experienced pain when he bent over to pick things up. He described the difficulty he had getting dressed, which he was unable to do without sitting or leaning on something, as he was unable to balance on his right leg. He described difficultly when driving extended distances and avoids driving “if my hip is really bad”. He stated that sleep is interrupted and that he has difficulty getting comfortable in bed.
The progress note of Dr Naser of 30 July 2008 as referred to in [89] above read:
“right hip OA: in [?sic –is] improving
waiting for Dr Doig review, will contact Dr Doig for right hip replacement.
Pain;
Centrelink certificate provided one month.
Brufen PRN
Will contact Dr Doig regarding Hip replacement.
Actions:
Letter Created – re. Centre Link
Letter Printed – re. Centre Link
Medication/Product Added: BRUFEN TABLET 400mg one t.i.d. if required with FOOD
stop the medication, if epigastric discomfort / heartburn.
Prescriptions printed:
BRUFEN TABLET 400mg one t.i.d. if required with FOOD
stop the medication, if epigastric discomfort / heartburn.
MOBIC CAPSULE 15mg ceased.
BRUFEN TABLET 400mg ceased.”
The entries in the 30 July 2008 notation, with respect to medication, are somewhat confusing. At one point the doctor’s notes indicate he added Brufen to the Appellant’s medication. Brufen is an anti-inflammatory medication. The progress notes suggest Brufen was prescribed at 400mg, three times per day with food. It appears that some instruction was given to the Appellant to cease the medication if he experienced certain side effects. Yet, confusingly, the progress note ends with a notation that the medication Mobic and Brufen were ceased. In these circumstances, I am unable to draw any inferences from the doctor’s notes concerning the prescription of medication, or the cessation of the medications previously prescribed, following his consultation with the Appellant on 30 July 2008.
Regrettably, there was no oral evidence from the Appellant concerning the extent of his symptoms as at 30 July 2008. There was no clarification sought, or given, as to what the Appellant told Dr Naser on 30 July 2008 that prompted his notation and there was very limited evidence on the issue of incapacity and its relationship to the work injury.
At [38] and [39] of the Reasons the Arbitrator made the following findings:
“38. On balance, given the Applicant’s lack of symptoms and onset of symptoms after the incident in September 2007 and the ongoing consistent pain complained of by the Applicant until some improvement in July 2007 [sic –2008] I find that the Applicant until that date was continuing to suffer from the aggravation of his underlying osteoarthritic condition as a result of the incident which occurred on 12 September 2007.
39. Following that date, as indicated, I note the recording in the doctor’s Progress Notes of some improvement and given otherwise the lack of medical material I find that as at about that date the aggravation of the Applicant’s condition ceased, leaving the Applicant with his ongoing incapacity being due to the underlying osteoarthritic condition.”
I agree with the Appellant’s submission that a finding of “some possible improvement”, as noted by Dr Naser in his progress note of 30 July 2008, is not reasonably capable of supporting the Arbitrator’s finding that Mr Bree’s condition had improved to the point where it could be equated with a cessation of the symptoms such that the aggravation to his condition caused by the injury had ceased.
Given the totality of the evidence, including:
(a)Mr Bree’s evidence which I accept that his hip joint was asymtomatic prior to the work injury;
(b)Mr Bree’s general practitioner provided WorkCover medical certificates certifying him unfit for work up until June 2008;
(c)Mr Bree’s treating specialist’s opinion that the work incident aggravated the pre-existing osteoarthiritis;
(d)Dr Hopcroft’s opinion that Mr Bree is suffering from gout, albeit in the presence of osteoathiritis, has not been confirmed;
(e)Mr Bree’s statement that he has continued to experience ongoing symptoms in his right hip since the work incident, which has limited activities including walking, bending, lifting squatting, which are all activities required in his position as butcher, and
and given the absence of evidence to rebut Mr Bree’s evidence that his symptoms continue, Mr Bree is entitled to the benefit of the presumption that the effects of the work injury have continue and that is the finding I make.
It has been held that any presumption of continuance has no higher status than other evidence and it must be weighed against the accompanying facts of the case. “Its effect is (simply) that the existence of facts at one point in time is evidence of their existence at a later point in time” (see Cloverdell Lumber Co v Abbott [1924] HCA 4; (1924) 34 CLR 122, 137-8 per Isaacs J).
Cross on Evidence 7th Australian edition describes prospectant evidence at paragraph 1120 in this way:
“In its most general form the argument for the reception of this kind of evidence is that the occurrence of an act, state of mind, or state of affairs in the past justifies an inference that the act was done, or state of mind, or affairs existed, at the moment of time into which the court is enquiring.”
The learned authors go on to describe the presumption of continuance as “no more than a convenient way of describing a process of logic or reasoning involving the drawing of inferences from established facts.” (R v Noonan (2002) 127 A Crim R 599 at [18]; BC200200833; [2002] NSWCCA 46 per Bell J)
I reject the Respondent’s submission that Dr Naser’s note of “improving” was probative that the aggravating effects of the injury had ceased on the basis that “a degree of improvement is logically consistent with a resolving effect”. I do not accept that the inference the Arbitrator drew from the doctor’s progress notes, and the findings that he made based on those inferences were available to him.
Conclusion
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; 5 DDCR 287 at [28]) I am of the view that the Arbitrator erred in finding that the effects of the aggravation had ceased. For the reasons I have given, it follows that the Arbitrator’s decision of 15 October 2008, as it relates to the award for the Respondent from 30 July 2008, must be revoked.
Having revoked the Arbitrator’s decision and upheld the appeal it is desirable, where appropriate, that a Presidential member finally determine the matter (see Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344). However, neither party has made fulsome submissions on the issue of incapacity and I consider that the most appropriate course is to remit the matter to another Arbitrator to determine afresh the Appellants claim in respect of weekly compensation, from 31 July 2008, resulting from the injury sustained on 12 September 2007. Given the general state of the evidence, both parties should be given the opportunity to tender further evidence in the new proceedings.
DECISION
Paragraph 1 of the Certificate of Determination dated 15 October 2008, amended on 8 December 2008 is revoked and the following orders made:
“The Respondent to pay the Applicant’s weekly compensation from 28 May 2008 to 30 July 2008 at the rate of $374.90 per week.”
Paragraph 2 of the Arbitrator’s determination of 15 October 2008 is confirmed.
The Appellant’s entitlement to compensation from 31 July 2008 is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision.
COSTS
The Respondent is to pay the Appellant’s cost of the appeal.
His Hon. Judge Keating
President
11 March 2009
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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