Bricknell v TAC Pacific Pty Ltd
[2011] NSWWCCPD 53
•21 September 2011
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Bricknell v TAC Pacific Pty Ltd [2011] NSWWCCPD 53 | ||||
| APPELLANT: | Paul Bricknell | ||||
| RESPONDENT: | TAC Pacific Pty Ltd | ||||
| INSURER: | GIO General Ltd | ||||
| FILE NUMBER: | A1-1143/11 | ||||
| ARBITRATOR: | Mr P Sweeney | ||||
| DATE OF ARBITRATOR’S DECISION: | 16 June 2011 | ||||
| DATE OF APPEAL DECISION: | 21 September 2011 | ||||
| SUBJECT MATTER OF DECISION: | Injury; whether the worker was bitten by an insect in the course of employment; application to rely on fresh evidence or additional evidence on appeal; s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; failure to prepare objective chronology of the principle events | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | NSW Compensation Lawyers | |||
| Respondent: | Sparke Helmore | ||||
ORDERS MADE ON APPEAL: | The Arbitrator’s decision of 16 June 2011 is confirmed. Each party is to pay his or its own costs of the appeal. | ||||
BACKGROUND
In April 2001, the appellant worker, Paul Bricknell, experienced weight loss, rashes, myalgia and other symptoms consistent with renal failure. He was subsequently diagnosed with Henoch-Schönlein purpura, a form of allergic purpura with erythema. He alleges that his condition has been caused by having been bitten by a spider on 9 April 2001 while he was at a work conference at the Argyle Function Centre at The Rocks in Sydney.
On the day of the conference, Mr Bricknell worked at several different display stands. Later in the day, he noticed that his right ankle was feeling very sore. At about 8.00 pm he went to the bathroom and pulled down his sock and noticed “big red welt marks around” his right ankle. He showed his ankle to his supervisor, Edward (Ed) Keller, who advised him to leave.
Mr Bricknell claimed lump sum compensation in the sum of $28,000 in respect of a 20 per cent loss of use of each leg at and below the knee under the Table of Maims, plus compensation for pain and suffering in sum of $40,000. The respondent employer disputed liability on the ground that Mr Bricknell did not receive an injury on 9 April 2001.
The Commission listed the matter for conciliation and arbitration on 18 May 2011. The matter could not be resolved and proceeded to arbitration. Mr Young, of counsel, appeared for Mr Bricknell and Mr Odling, of counsel, appeared for the respondent. Neither side sought to call any oral evidence. Mr Bricknell was not cross-examined.
In a reserved decision delivered on 16 June 2011, the Arbitrator held that, on the balance of probabilities, Mr Bricknell had not established that he suffered injury by insect bite at work and he made an award for the respondent employer.
Mr Bricknell has appealed the Arbitrator’s decision.
ON THE PAPERS
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.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
ISSUE IN DISPUTE
The issue in dispute in the appeal is whether the Arbitrator erred in finding that Mr Bricknell had not established that he suffered an insect bite at work.
THE EVIDENCE
At the arbitration, Mr Bricknell relied on evidence in his statement dated 26 October 2009. He said that he attended a work conference at the Argyle Function Centre on 9 April 2001. Through the day, he rotated on most of his employer’s display stands, providing customers with information or demonstrations and answering technical questions. Later in the day, his ankle was feeling very sore. At about 8.00 pm, he went to the bathroom and pulled down his sock to see what was wrong with his ankle and noticed “big red welt marks around” his ankle. He returned to the conference room and showed Mr Keller the marks on his ankle. Mr Bricknell said that he did not know what the marks were and that his ankle was “quite sore”. Mr Keller told the worker he could go home, which he did.
Mr Bricknell said he was not feeling well the following day, but attended work. He left early because he felt ill and had a couple of days off work “thinking it was just a general sickness”. He progressively became worse and saw his general practitioner. He showed the doctor his ankle. The doctor thought Mr Bricknell was coming down with the flu and prescribed antibiotics.
Mr Bricknell first sought medical treatment on 20 April 2001, when he saw Dr Nigro, a general practitioner. The doctor’s notes record:
“URTI 2 days, sore throat, headaches, fevers, coughs
Myalgia
O/E chest clear, throat inflamed, ear normal”.
Dr Nigro prescribed antibiotics.
He saw Dr Nigro again on 24 April 2001. His notes for that attendance only record that Vioxx and Zinnat were prescribed.
On 25 April 2001, Mr Bricknell attended at Liverpool District Hospital, where he was seen by Dr Rebecca Deans. The notes record under “nursing assessment data” that Mr Bricknell complained of:
“Generalised body aches 5/7 saw GP last week and yesterday and commenced on oral antibiotics. Swelling to right hand and both feet intermittently. Has not taken paracetamol today. On arrival afebrile. Alert and orientated. Nil rashes seen. Nil vomiting or cough.”
In a report from Dr Deans to Dr Nigro, she said that Mr Bricknell had a “macluar [sic] rash which looked like erythema”. The cause of the rash was unknown, but several possible causes were suggested. The clinical notes from the hospital record the presence of a rash over the arms, hands and legs to the knees. There was swelling in the ankles and dorsal aspect of the left hand.
Dr Nigro recorded on 30 April 2001 that Mr Bricknell’s wife said her husband was “much worse” and had lost 10 kg. Later that day, Dr Nigro apparently saw Mr Bricknell and recorded that he was worse.
On 2 May 2001, Mr Bricknell was admitted to St George Hospital with history of general aches and pains for two weeks. The principle diagnosis on admission was hypersensitivity vasculitis with nephritis and palpable purpura. The notes record:
“Initially experienced pain in anterior shins and ankles in association with 2 red spots on front of ankles
Progressed to develop [indecipherable] like rash over entire anterior lower legs.” (emphasis included in original)
On 8 May 2001, Dr Mangos wrote to Dr Nigro stating that Mr Bricknell had been unwell for the previous three weeks. He initially presented with diffuse leg pain which migrated to his upper limbs. He developed a rash over the lower limbs. Dr Mangos felt that the syndrome “looked like Henoch-Schönlein purpura” However, a test for IgA, which one would expect to find in Henoch-Schönlein purpura, was negative. Later tests were positive for IgA.
On 24 May 2001, Dr Murrell, staff specialist in dermatology at St George Hospital, said that she was suspicious that the antibiotics Mr Bricknell took for his flu-like symptoms “may have been responsible” for his condition.
Mr Bricknell completed a claim form on 15 June 2001 in which he said he had been “[b]itten on ankle by unknown insect (spider ?)”.
Mr Bricknell was again admitted to St George Hospital on 30 June 2001. The notes record:
“Blood in urine unwell since bitten by insect (? What exactly) 1/12 ago. Has seen Dr Mangos for immune-related vasculitis affecting the kidneys. Had renal biopsy 2/52 ago and nil problems post procedure on prednisone 40mg at present.”
Dr Hessian saw Mr Bricknell at the request of the respondent on 22 January 2002. He took a history of the events on 9 April 2001 as follows:
“He was aware of soreness of his lower right leg and, on inspection, he observed two large red welts on the medial side of his ankle. He consulted Dr Nigro at Hurstville, by then complaining of pain in both legs and slight pain in his upper limbs. Otherwise, he felt constitutionally well.”
He concluded that there was no definite evidence that Mr Bricknell’s employment was the cause of his condition. He thought the cause was unknown, but it was likely that it was of a constitutional nature.
Dr Mangos reported on 10 August 2006. He said that he saw Mr Bricknell when he was admitted to hospital in May 2001 because of hypersensitivity vasculitis, a condition that causes bruising of the skin, aches and pains, weight loss and kidney disease. He said:
“Mr Bricknell did report a bite of an insect on his ankle or leg at that time and certainly insect bites have been reported to cause the condition he had, Henoch-Schönlein purpura. I do not have documented the circumstances surrounding the work incident. I do recall Mr Bricknell referring to an insect bite after the original presentation but it certainly was not a major feature of his original story and it is not mentioned specifically in his discharge summary, though I do quite clearly recall him referring to an insect bite, possibly a spider bite. He believed that the whole syndrome followed this bite. I cannot elaborate on the issue surrounding the bite.”
Dr Mangos concluded that he believed:
“the syndrome was due to a hypersensitivity reaction to an antigen, these antigens are often medications, infections or insect bites. Certainly an insect bite would explain the reaction.”
Dr Millar saw Mr Bricknell at the request of his solicitors on 1 March 2007. He prepared reports dated 2 March 2007, 15 January 2010 and 1 February 2011. Dr Millar recorded that Mr Bricknell noticed an itchy area on his foot on 9 April 2001. When he went to the bathroom and pushed his socks down, he “noticed he had some red spots on the area”. The next day he was unwell and his condition slowly worsened. Dr Millar thought that Mr Bricknell had a form of vasculitis. On the issue of causation, he said:
“The causes of this condition are unknown as it is very uncommon.
However this form of vasculitis has been reported as occurring after an insect bite and I believe the condition Mr Bricknell now has is consistent with the history that he had an insect bite which led to his present disability.”
As the Arbitrator noted, how Dr Millar obtained a history of an insect bite is unknown because he did not record that history in his report.
In his report of 15 January 2010, Dr Millar repeated the history that, on 9 April 2001, Mr Bricknell had an “itch [sic] area on the foot and when he examined it, he noticed red spots”. His problem was Henoch-Schönlein purpura, which “presents its initial symptoms in most cases as red spots spread over various parts of the body in the form of purpura”. He added:
“Now whether he had a bite from an insect or whether this was purely the onset of an episode of Henoch -Schönlein purpura, is uncertain and would need someone to have seen the rash at the time and to have documented it to determine precisely whether he had or had not a bite from an insect.
I believe it is important to note that he was admitted to Liverpool Hospital and at that time he stated that he had purpura over his legs. This very strongly suggests that the problem was initially purpura rather than an insect bite.” (emphasis added)
Dr Millar then referred to a renal biopsy (done in mid-May 2001, not on 6 June 2001 as Dr Millar has assumed), which showed the glomeruli were abnormal and that Mr Bricknell had a form of proliferative glomeruli and nephritis. He concluded:
“This must have been there for some time as there were quite significant changes in the renal tubules. He may not have had symptoms from it, but it was certainly present for some time prior to this incident in 2001, so that if he had an insect bite, it did not cause his renal problem. It may have precipitated the bout of purpura but the description of the purpura whilst he was in hospital, very strongly suggested the whole problem is one of Henoch-Schönlein purpura rather than an insect bite, which has precipitated his problem.” (emphasis added)
THE ARBITRATOR’S DECISION
The Arbitrator set out a detailed summary of the evidence and concluded there was little doubt that Mr Bricknell suffers from Henoch-Schönlein purpura, a “type of hyposensitivity [sic] vasculitis”. He also accepted that the condition could be caused by a spider bite.
He said that the acceptance of injury by spider, or other insect bite, depended on drawing inferences from Mr Bricknell’s evidence and the acceptance of the opinions of the doctors that the marks which Mr Bricknell described were the result of an insect bite or bites. Though there was no reference to a spider or insect bite in Dr Nigro’s clinical notes, his notes were “expressed in such a laconic manner that they are of little assistance”.
The Arbitrator expressed a similar view about the notes from Liverpool Hospital. However, those notes also recorded that, at the time of admission, Mr Bricknell had a macular rash that looked like erythema nodosum, a condition characterised by the formation of painful lumps on the legs. It was on the basis of these symptoms that Dr Millar revised his initial position, though it was not clear if the doctor relied on Mr Bricknell’s account of his symptoms on admission or on the hospital notes. The Arbitrator thought the latter was likely.
It was acknowledged that there had been no attack on Mr Bricknell’s credit. His evidence was that, when he pulled his socks down, he noticed “big red welt marks” around his ankle. He did not say that he only observed features that were only consistent with a spider bite. He said he did not know what the marks were. Though Mr Bricknell said at [55] of his statement that “[a]s a result of the insect bites on my right leg I developed large marks on my right leg at the time”, he did not explain when, or in what circumstances, he came to believe that the marks were insect bites.
The Arbitrator thought there was force in Mr Odling’s submission that, in that part of his statement which described the circumstances of the alleged injury, Mr Bricknell had not unequivocally described observing features of an insect bite. Mr Bricknell’s vague description of what he saw was reflected in other parts of the evidence. Mr Bricknell said he did not report the incident immediately because he “had leg pain/thought it was a flu symptom”.
If there were no alternative explanation for the worker having red spots on his ankle on 9 April 2001, the Arbitrator felt that the vagueness of Mr Bricknell’s descriptions of the alleged bite may be of little importance. However, there was an alternative explanation for the red welts/marks on Mr Bricknell’s right ankle on 9 April 2001. Dr Millar “lent towards” the view that it was probable that they had been caused by Henoch-Schönlein purpura. That opinion was consistent with the nature of the disease, which manifests itself as red spots on the lower limbs. Rashes and macules were observed on Mr Bricknell’s lower limbs at the St George Hospital. Dr Millar’s revised opinion found some support from Dr Hessian.
While the opinion of Dr Mangos, as the treating specialist, was entitled to considerable respect, he did not address the issue of whether the red marks or welts observed on 9 April 2001 were consistent with an insect bite or a manifestation of the disease.
After noting that Mr Young had submitted that Mr Bicknell reported a bite to Mr Keller, the Arbitrator said that the evidence went no further than establishing that Mr Bricknell had shown red marks on his ankle to Mr Keller.
As Mr Bricknell had not established that he suffered an injury by insect bite at work, on the balance of probabilities, there had to be an award for the respondent.
SUBMISSIONS
Mr Bricknell seeks to tender on appeal, as “new evidence”, a statement from Mr Keller dated 5 July 2011 in which he said:
“Sometime during the evening of the business function, Paul [Bricknell] came to me and showed [me] his ankle and he stated that it was sore. I noticed red welt marks around the outside of his ankle. Paul’s facial expression demonstrated that he was in pain and he also complained that his ankle was stinging. I suggested to him that he should leave and get it checked out.”
In support of this application, it has been submitted on behalf of Mr Bricknell that:
(a) “the Arbitrator remarked that there was no direct evidence of an insect or spider on the appellant’s leg” and, the Arbitrator was required to draw inferences with reference to contemporaneous material;
(b) Mr Bricknell “reported the bite to Mr Keller at the time” and Mr Keller is in a position to corroborate Mr Bricknell’s “allegation of a bite causing the ‘red welts’ on the right ankle” as opposed to the alternative hypothesis of the spontaneous onset of Henoch-Schönlein purpura at work on 9 April 2001;
(c) the admission of the statement is sought to “establish that the red welt marks seen at the time of injury were consistent with a bite with ‘stinging’ in a small isolated area of the right ankle” (emphasis included). This is in contrast to the initial onset of Henoch-Schönlein purpura, which Dr Millar described in his report of 15 January 2010 as presenting in most cases “as red spots spread over various parts of the body in the form of a purpura”;
(d) on whether Mr Bricknell suffered a bite at work or experienced the initial onset of Henoch-Schönlein purpura, Dr Millar “deferred to someone” who had seen “the rash at the time”;
(e) Mr Keller saw the “red welt marks” with complaints of “stinging” at the time. The marks were not “spread over various parts of the body”. Mr Keller recalled Mr Bricknell complaining of “stinging” consistent with an insect bite rather than an itch from a rash/purpura;
(f) the rash did not appear until 16 days later when Mr Bricknell was admitted to Liverpool Hospital on 25 April 2001, and
(g) the “initial symptoms” of a widespread rash that Dr Millar referred to developed 16 days after the incident at work. Mr Keller’s statement not only corroborates the evidence of a “stinging” bite, but also confirms that an event occurred at work 16 days before to trigger the development of a widespread rash.
The employer has opposed the introduction of Mr Keller’s statement.
It has been further submitted on behalf of Mr Bricknell that there was adequate evidence to support an inference that Mr Bricknell was bitten at work and that the bite caused “red welt marks” and “stinging”. It was argued that the Arbitrator erred in failing to place “due weight on the evidence [of] a work-related incident in view of the unchallenged evidence of”:
(a) stinging red welts in an isolated area on the right ankle;
(b) the initial flu-like symptoms, and
(c) the 16 day delay before the development of a widespread rash on the upper and lower limbs, which Dr Millar would comment was consistent with the “initial symptoms”.
In other words, so it was argued, if what Mr Bricknell observed at work was truly the spontaneous onset of Henoch-Schönlein purpura, then:
(a) the widespread rash should have been evident then rather than stinging red welts isolated to the right ankle, and
(b) the widespread rash should have been seen at work and not 16 days later.
DISCUSSION AND FINDINGS
I do not accept the above submissions.
The admission of fresh evidence or additional evidence on appeal is governed by s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), which states:
“(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. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The submissions in support of the application to rely on Mr Keller’s statement are surprising, to say the least. First, they have not addressed the terms of s 352(6) of the 1998 Act. There is no evidence that Mr Keller’s statement could not reasonably have been obtained before the arbitration. It follows that the first test in s 352(6) is not satisfied.
Second, the submissions have misrepresented Mr Keller’s evidence. He did not say that a bite caused the marks on Mr Bricknell’s ankle. He said that he saw “red welt marks around the outside” of Mr Bricknell’s ankle and that Mr Bricknell complained that his ankle was “stinging”. That is essentially consistent with Mr Bricknell’s unchallenged evidence at the arbitration. The only difference is that Mr Bricknell did not use the word “stinging”, but said his ankle was “quite sore”. That difference is of no consequence and adds nothing to the evidence that was before the Arbitrator.
In these circumstances, the failure to grant leave to rely on Mr Keller’s evidence will result in no injustice, as it adds nothing of relevance to the evidence that was before the Arbitrator. The application to rely on Mr Keller’s evidence on appeal is refused.
With regard to the other submissions made in support of the appeal, it is correct that Dr Millar said Henoch-Schönlein purpura presents its initial symptoms, in most cases, as red spots over “various parts of the body” in the form of purpura. However, he did not say, as has been submitted on behalf of Mr Bricknell, that he “deferred to someone who had seen ‘the rash at the time’”.
Dr Millar said that whether Mr Bricknell had a bite from an insect or purely the onset of Henoch-Schönlein purpura was “uncertain and would need someone to have seen the rash at the time and to have documented it to determine precisely whether he had or had not a bite from an insect”. Mr Bricknell did not see a doctor until 20 April 2001 and that doctor’s notes do not refer to a bite or a rash and, as the Arbitrator noted, are of little assistance.
Dr Millar said that the reference to Mr Bricknell having had purpura over his legs at the time of his attendance at Liverpool Hospital “strongly” suggested that the problem was initially purpura rather than an insect bite. There is no suggestion that Dr Millar was not aware of the delay between 9 April 2001 and the attendance at Liverpool Hospital.
To the extent that the above submission relies on Mr Keller’s evidence to establish that Mr Bricknell was bitten by a spider on 9 April 2001, that evidence is not admitted. Even if Mr Keller’s statement were in evidence, it makes no difference to the outcome because it does not provide anything like the kind of “documented” evidence referred to by Dr Millar. As I stated above, it merely corroborates Mr Bricknell’s unchallenged evidence that he had sore red welts on his right ankle on 9 April 2001.
Mr Bricknell’s argument is that, because the only marks identified on 9 April 2001 were to the ankle, and, as the widespread rash did not appear until 25 April 2001, the Arbitrator erred in not drawing an inference that the marks seen on 9 April 2001 were caused by an insect bite and that the rash was caused by that bite.
I do not accept this submission. The inference that an insect bit Mr Bricknell on 9 April 2001 and caused his problems was not the only inference open on the evidence. Mr Bricknell’s argument ignores the fact that Mr Bricknell gave no evidence of having seen a spider on his leg on 9 April 2001.
Mr Bricknell said that he did not know what the marks were. The Arbitrator correctly observed that the evidence went no further than establishing that Mr Bricknell showed marks on his ankle to Mr Keller. The first reference to a spider bite was not until 30 June 2001. These were matters the Arbitrator was entitled to consider, and did consider, in declining to draw the inference urged by Mr Bricknell.
More importantly, Mr Bricknell’s argument ignores Dr Millar’s critical evidence about the significance of the renal biopsy in May 2001, which demonstrated significant changes in the renal tubules. Though Mr Bricknell may not have had symptoms from it (before 9 April 2001), Dr Millar said that it was “certainly present for some time prior to this incident in 2001, so that if he had an insect bite, it did not cause his renal problem” (emphasis added).
Further, Dr Millar’s conclusion that the description of the purpura when Mr Bricknell was in hospital “very strongly suggested the whole problem is one of Henoch-Schönlein purpura rather than an insect bite, which has precipitated his problem” is compelling evidence against Mr Bricknell that supports the Arbitrator’s conclusion.
Having regard to the whole of the evidence, the Arbitrator’s conclusion was open to him and discloses no error.
OTHER MATTERS
Practitioners are reminded that applications to rely on fresh evidence or additional evidence on appeal must be supported by submissions that address the terms of s 352(6). The admission of fresh evidence or additional evidence on appeal is only allowed with leave. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party and could not reasonably have been obtained by the party before the proceedings concerned, or that the failure to grant leave would cause substantial injustice in the case. Neither condition was satisfied in the present case.
They are also reminded that chronologies filed with appeals must be objectively accurate statements of the principle events leading up to the lodging of the appeal. The chronology filed in the present matter asserted that on 9 April 2001, Mr Bricknell “sustained an insect bite at work and reported it to Mr Keller”. The assertion that he sustained an insect bite was misleading. That was the very event the Arbitrator was not satisfied had happened.
CONCLUSION
The Arbitrator did not accept that an insect had bitten Mr Bricknell on 9 April 2001. That finding was open to him. Neither his conclusion nor his reasoning discloses any error. Mr Keller’s statement, if it were admitted, does nothing other than to confirm, as had already been established in the evidence before the Arbitrator, that Mr Bricknell showed him the marks on his ankle and complained of pain.
DECISION
The Arbitrator’s decision of 16 June 2011 is confirmed.
COSTS
Each party is to pay his or its own costs of the appeal.
Bill Roche
Deputy President
21 September 2011
I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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