Broun v Woolworths Limited
[2008] NSWWCCPD 40
•31 March 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSIONCONSTITUTED BY AN ARBITRATOR
CITATION:Broun v Woolworths Limited [2008] NSWWCCPD 40
APPELLANT: William Broun
RESPONDENT: Woolworths Limited
INSURER:self-insured
FILE NUMBER: WCC3968-07
DATE OF ARBITRATOR’S DECISION: 17 October 2007
DATE OF APPEAL DECISION: 31 March 2008
SUBJECT MATTER OF DECISION: Injury; section 4 of the Workers Compensation Act 1987; causation; no evidence; incorrect findings
PRESIDENTIAL MEMBER: President Greg Keating, DCJ
HEARING:On the papers
REPRESENTATION: Appellant: PK Simpson & Co.
Respondent: Moray and Agnew
ORDERS MADE ON APPEAL:
Time to appeal is extended to 26 November 2007.
The decision of the Arbitrator dated 17 October 2007 is revoked and the matter is remitted to a different Arbitrator for determination afresh.
The costs of the first arbitration hearing are to be determined by the new Arbitrator at the conclusion of the rehearing.
The Respondent is to pay the Appellant’s cost of the appeal.
BACKGROUND TO THE APPEAL
On 26 November 2007, William Broun (‘the Appellant / Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 17 October 2007.
The Respondent to the Appeal is Woolworths Limited (‘the Respondent /Employer’).
Mr Broun is a 24 year old who was employed as a perishables assistant in the Woolworth store at Gordon. He alleges that on 10 October 2003 he sustained an injury to his back and right leg as a result of lifting three tubs of ice-cream and bending to place them in a coffin freezer.
Mr Broun filed an Application to Resolve a Dispute in the Commission on 30 May 2007 in respect of the above injury seeking weekly compensation of $250.00 per week from 1 November 2004 to 31 May 2006 and at the rate of $680.00 per week from 1 August 2006 to date and continuing, compensation under section 60 for medical expenses and lump sum compensation under section 66 in respect of 5% whole person impairment (WPI).
Mr Broun subsequently increased his claim under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) to 10% WPI and to claim compensation pursuant to section 67 for pain and suffering.
Woolworths filed a Reply, relying on the issues raised in the section 74 Notice, and disputed liability for the claim on the basis that the Worker was fit for pre-injury duties, and disputed liability for further medical treatment. Woolworths alleged that the Worker’s WPI was 0% and that section 9A of the1987 Act was in issue.
The parties were unable to settle the claim and the matter proceeded to arbitration hearing on 4 September 2007. Both parties were represented and after hearing submissions from the parties the Arbitrator issued a Certificate of Determination accompanied by a statement of reasons dated 17 October 2007 and it is from this decision that Mr Broun seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 17 October 2007 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1.Award in favour of the Applicant for an aggravation of a pre-existing injury to the lumbar spine in relation to an injury sustained at work on 10 October 2003 when he bent over to pack tubs of ice-cream into a low freezer.
2.Award in favour of the Respondent in relation to incapacity from the date of resignation from Woolworths being 9 November 2004. No weekly compensation payments are payable for the period claimed by the Applicant.
3.Award in favour of the Applicant for s60 medical expenses up to the date incapacity ceased being 8 November 2004.
4.Award in favour of the Respondent for s60 medical expenses from the date incapacity ceased being 9 November 2004.
5.Respondent to pay the Applicant’s costs as agreed or assessed.
A brief statement of reasons for determination, in accordance with Rule 15.9 (1) of the Workers Compensation Commission Rules 2006, is attached.”
ISSUES IN DISPUTE
The issues in dispute are that the Arbitrator erred in:
a)finding that Mr Broun sustained an injury in the nature of an aggravation of an earlier football injury when there was no evidence that any earlier football injury had resulted in any incapacity;
b)failing to find that the effects of the work injury were continuing;
c)stating that the findings in the MRI scan were not significant, and
d)having found injury, failing to refer the matter to an Approved Medical Specialist.
The Appellant seeks the following relief:
“The Appellant seeks that the claim for S66 be remitted to an Approved Medical Specialist or alternatively be remitted back to another Arbitrator.”
Given that the Appellant’s grounds of appeal challenge the Arbitrator’s findings on both injury and causation, I interpret the relief sought as being that if the Appellant’s appeal is successful and the issues of injury and causation are re-determined in his favour on appeal, the matter must be referred for an Approved Medical Specialist examination.
With the exception of the fourth ground of appeal, that having found injury, the Arbitrator should have referred the Worker for assessment by an Approved Medical Specialist in relation to the claims pursuant to section 66, the Respondent disputes the other grounds of appeal and submits that the Arbitrator’s finding on injury and incapacity should not be disturbed.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Monetary thresholds
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 whole of the amount of compensation is at issue on appeal and exceeds $5000.00 and the threshold in section 352(2)(a) is met. The Arbitrator did not award any compensation and the threshold of 20% in section 352(2) (b) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
Section 352(4) of the 1998 Act provides:
“(4) An appeal can only be made within 28 days after the making of the decision appealed against.”
Part 16.2 of the Workers Compensation Commission Rules 2006 (‘the Rules’) governs procedural requirements with respect to appeals against an Arbitrator’s decision. Rule (11) of that Part provides:
“(11) 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.”
The principles relevant to the exercise of discretion to extend time were considered by the High Court of Australia in Gallo v Dawson [1990] HCA 30 (1990) 93 ALR 479. Those principles have been discussed and applied in numerous decisions of the Commission (see for example, Alexandru v State Rail Authority NSW [2004] NSWWCCPD 54).
The appeal was initially lodged on 12 November 2007, two days prior to the expiration of the 28-day limitation period.
Under letter dated 20 November 2007, after the expiration of the limitation period, the Registrar notified the Appellant that the appeal was rejected because the Appellant had not attached submissions on the threshold issues. The Appellant acted promptly upon receipt of notice from the Registrar and the appeal was re-lodged on 26 November 2007, within a week of receiving notice from the Registrar. This re-lodged application was therefore in breach of the time requirements in that it was filed 13 days after the expiration of the period fixed by the 1998 Act and the Rules (Part 16 rule 16.2(1)).
The Respondent in its Notice of Opposition declined to make any submissions detailing any opposition to the filing of the appeal out of time or submissions on the threshold issues in section 352(2) of the 1998 Act. It made no submissions that it will be prejudiced if time to appeal is extended.
I am satisfied that the defects in the original appeal lodged on 12 November 2007 were related to non-contentious matters in relation to whether the appeal meets the thresholds in section 352(2). These defects were not drawn to the Appellant’s attention by the Commission until after the expiration of the time period.
For the following reasons, I believe that exceptional circumstances exist that warrant time to appeal being extended:
· the appeal was initially lodged in time;
· the letter rejecting the appeal was not received by the Appellant until after the 28 day period in which to appeal had expired;
· the Appellant has a strongly arguable case;
· for the Appellant to lose the right of appeal would work a substantial and demonstrable injustice, and
· the Respondent points to no prejudice it will suffer if time to appeal is extended.
I therefore extend time to appeal to 26 November 2007.
Leave to appeal is granted.
FRESH EVIDENCE
Neither party seeks to rely on fresh evidence.
REVIEW
A Presidential member’s powers in conducting a review pursuant to section 352 of the 1998 Act, were discussed in The King Island Company Limited v Deery [2005] NSWWCCPD 1. Byron DP said:
“A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.” (at [19])
In Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34, it was confirmed that the review process was broader than correction of error of the kind identified in House v The King. Bryson JA said at:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] quoted this passage with approval in holding that it was “an over-generalisation” to describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” (at [133]).
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
Before an Arbitrator’s decision will be revoked on appeal it must be demonstrated that the decision contains, or has resulted from, an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
EVIDENCE
Mr Broun relied on a signed statement dated 11 September 2006 in which he detailed his work history from 1999 to August 2006. The Worker stated that he worked at Woolworths’ Gordon store from March 2003 to November 2004.
The statement is internally inconsistent in that Mr Broun states that he “commenced work at Woolworths…on a full time basis” (paragraph [22] of the statement) and at paragraph [26] he stated that:
“My hours were from 5.30am to 2.30 pm and from 10.00am to 7.30pm on a fortnightly rostered basis. I worked 44 hours per fortnight.”
Mr Broun states that he cannot recall the day or date on which he was injured but recalls that at about 2.45pm on an unspecified day he was leaning over a coffin style freezer packing ice cream and lifting three, one litre tubs of ice cream, when he experienced sharp lower back pain. Fifteen minutes later he finished his shift at the usual time and, after he drove home (a trip that took approximately 15 minutes) he experienced difficulty getting out of his car. He stated that it took him approximately 40 minutes to get out of the car and into his house.
He stated that he reported the incident by telephone on the same day and also attended at Woolworths on the same day to complete an incident report. The Worker also stated that he attended his general practitioner and was referred for an MRI scan which showed a protruding disc in the lower back, possibly at L5.
Mr Broun stated that he had three weeks off work, daily physiotherapy and was examined by a Woolworths’ doctor. He returned to work on light duties for two weeks and then given a promotion to “IC” [in-charge] on the dock and storeroom. This work involved a lot of bending and lifting and carrying weights up to 40 kg. He stated that he managed this work for approximately a year, although every few months “there would be an aggravation” after which he would attend physiotherapy, the cost of which he personally met. He ceased work in November 2004 stating:
“Because the workload was too great and this was affecting my back. I was starting to experience daily pain but I was trying to deal with it” (Mr Broun’s statement paragraph [63]).
After leaving Woolworths, Mr Broun stated that he performed private landscaping work for about a year. He was then employed as a labourer with Floline Turf and subsequently worked in a café. Over this time he stated that his back flared up every few months requiring physiotherapy.
From January 2006 to June 2006 Mr Broun stated he did not work “very much” and in June 2006 commenced with Out of Space Landscapers working 40 hours per week. He ceased this work on 1 August 2006 because he was unable to continue due to constant pain. He stated at the time of signing his statement dated 11 September 2006 that he had daily low back pain and right leg pain. He could not lift weights greater than 10 kg and riding a pushbike, driving, and surfing had become more difficult.
Mr Broun has a TAFE qualification in landscape-horticulture and construction. He denied suffering any prior back injuries. He noted he had a torn medial ligament in the left knee in 2000 as a result of playing rugby and at the age of 16 he dislocated his right shoulder playing rugby. He also suffered a hernia whilst working at the Greengate Hotel at an unspecified date between July 2000 and December 2000 when he was employed full time as a kitchen hand.
Mr Broun completed a claim form on 13 October 2003 stating that he suffered a low back strain on 10 October 2003 packing the coffin freezer. Adriana Stevens completed the Employer’s report of injury and recorded a date of injury as 10 October 2003. It noted that notice was given to Terese Borg on 11 October 2003. The form noted that Mr Broun worked casually averaging 15.35 hours per week and his commencement date was 14 November 2003 (this is clearly an error). The Employer also noted that on the day of the injury the Worker failed to report the incident to his department manager, the store trading manager or the store manager who were all on site at the time.
In a short supplementary statement dated 11 July 2007, Mr Broun stated that following his back injury on 10 October 2003 he made complaints to various Woolworths’ employees (Nathan Grundy, dockhand, Tegan Smith, supervisor, Stewart McCallaster, [sic-McAllister] perishables manager, and Trent Spackman, department manager).
The Worker relies on four WorkCover certificates from Dr Hadgis dated 13 October 2003, 20 October 2003, 27 October 2003 and 5 November 2003. In the certificate dated 13 October 2003, Dr Hadgis diagnosed lumber back strain with posterior fasciitis and certified the worker unfit for work from 11 October 2003 to 13 October 2003 and fit for suitable duties from 14 October 2003. On 20 October 2003, the doctor certified the Worker fit for suitable duties from 20 October 2003 to 27 October 2003 with a lifting limit of 5 kg, no bending or twisting and to perform mainly sitting duties with standing limited to one hour working 4 hours per day 5 days per week.
On 27 October 2003 Dr Hadgis certified the Worker fit for 15 hours per week with a lifting limit of 7 kg. As per his return to work plan, Mr Broun was to work one hour and have a 10-minute break.
In a certificate dated 5 November 2003 Dr Hadgis certified the Worker fit to return to pre injury duties from 6 November 2003.
I note a document from Northside Sports Physiotherapy seeking approval for physiotherapy treatment dated 10 December 2003 referred to a date of injury of 10 October 2003. The area treated is detailed as lumber spine and the treatment is to the “L5/S1 disc irritation and poor lumbo-pelvic stability”. The current work status is noted as “F/T normal with intermittent pain”. Under the heading “factors impacting on the clinical course of recovery…”, has been inserted:
“work requirements which may cause re-injury slowing down complete recovery”
The physiotherapy form states that the date of initial treatment was 23 March 2002. It states that 18 consultations have occurred and estimates a further 10 treatments.
A further physiotherapy document titled “Physiotherapy Plan No: 3” dated 13 January 2004 has similar detail to that stated above and seeks approval for a further 10 treatment sessions after the 30th treatment and noted that 26 consultations had been provided to date. Reference to the initial treatment date was again noted as 23 March 2002. Reference was also made to boxes falling off a truck onto the patient in the Christmas week leading to a re-aggravation of back pain. The report notes that the expected outcome is pain free normal duties of work and self-management strategies and home strengthening exercises.
Mr Broun also relied on a medico-legal report from Dr Neophyton dated 12 October 2006. Dr Neophyton recorded the date of injury as 15 April 2002 [sic- presumably 10 October 2003]. He obtained a consistent history of the circumstances of the incident as claimed. He recorded a history that the Worker attended his general practitioner who provided pain relief, ordered an x-ray and referred the Worker to a specialist. The specialist ordered an MRI scan which showed a ruptured disc in the lower back. Mr Broun informed Dr Neophyton that since the incident he had severe pain in his right leg. At the time of the examination however, Mr Broun stated that he was generally symptom free but every 3 to 4 months he experienced acute spasm in his back with pain radiating into his right leg. He could not inform the doctor of any particular precipitating incidents for these episodes of pain. The doctor noted that the Worker was not taking any medication at the time of the examination and that Mr Broun had previously had surgery to repair a hernia, but had no previous back problems.
Dr Neophyton noted that Mr Broun had worked as a landscaper since leaving Woolworths but found that work too hard on his back and that was the reason for working in a café. The doctor concluded that there was a direct casual relationship between the work injury sustained on 15 April 2002 [sic- presumably 10 October 2003] and his current problems with his back and right leg. Dr Neophyton did not believe that Mr Broun was able to return to his pre-injury work or to landscaping work. He assessed a 5% WPI.
The Worker also relied on copies of three Centrelink medical certificates completed by Dr Buddee from Hornsby Sports medicine. The copies provided to the Commission are very poor photocopies. It appears from the certificate certifying the worker unfit for work from 8 January 2007 to 15 January 2007 that Mr Broun has been a patient of Dr Buddee since 13 November 2006 and a patient at the practice since 1996. The second certificate certifies Mr Broun unfit for work from 11 January 2007 to 21 January 2007 and the third certificate, from 18 June 2007 to 16 July 2007.
An MRI scan report from Dr Lucas addressed to Dr Buddee dated 22 November 2006 showed desiccated L4/L5 discs with a small central protrusion at L5/S1, formaninal narrowing at L4/L5 more than L5/S1 and associated facet joint arthrosis.
Dr Neophyton prepared a supplementary report dated 18 July 2007 at the request of Mr Broun’s solicitors. The doctor reviewed the MRI scan of the lumber spine dated 22 November 2006, which the doctor referred to as “a repeat MRI scan of the lumber spine and right sacroiliac joint.” He reported on it as follows:
“…there was desiccation of the L5/S1 disc. It also showed a posterior annular tear with a small protrusion, more prominent on the right than on the left. There was also some slight foraminal narrowing but there was no canal stenosis. There were also associated facet joint degenerative changes noted. In the L4/5 area there was also an annular tear with desiccation of the disc and a slight bulge of the disc margin which in combination with the facet joint hypertrophy resulted in a minor foramina narrowing more marked on the left than on the right. There was no abnormality in the sacral iliac joint.”
Dr Neophyton revised his opinion in light of the MRI scan report dated 22 November 2006. He stated that Mr Broun would have ongoing pathology, which would cause him “major problems in the future.” Dr Neophyton assessed a 20% permanent impairment of the back or a 10% WPI.
A bone scan report from Dr Elison dated 24 May 2002 records the following:
“REASON FOR STUDY: Regular sport – Rugby player- chronic (4 months) low back pain? pars fracture…
CONCLUSION: Normal bone scan. There is no objective evidence of an undetected pars fracture, stress fracture, facet joint arthritis or other specific bony abnormalities to suggest an obvious bone cause for the patient’s symptoms in the lumbar spine.”
An x-ray report from Dr Kossoff dated 13 November 2006 showed a mild scoliotic curve, but no significant abnormality demonstrated. There appears on this report a hand written note signed by Dr Buddee, to whom the report is addressed noting “Loss bilat L4/5 L5/S1 facet joint space bony island iliac side L SIJ”.
Dr Lucas also reported on a CT guided injection of the right SI joint dated 30 March 2007, noting a successful injection of Celestane and Marcain into the right sacro-iliac joint.
Mr Broun also relied on the clinical notes of Dr McGilvray, produced in response to a Direction for Production for the period April 2002 to July 2007. The notes are not easy to read, however in April 2002 the Worker attended the doctor with knee symptoms and complaints of medial ligament tenderness and retro patella tenderness. On 5 May 2002, the doctor recorded lateral knee pain and a reference to an MRI and “LBP” (low back pain), however the further entries in relation to the low back pain are indecipherable. On 31 May 2002 reference is made to a bone scan. In February and March 2003, there are attendances in relation to knee pain. On 20 March 2003 an entry is recorded as “Bone bruising lateral tib. plateau on MRI.”
On 22 November 2004 the Worker attended with right sacro-iliac “discomfort/clicking” and a referral was made for an x-ray. The x-ray results appear to be recorded in the entry dated 24 November 2004, but are indecipherable, with the exception of “old injury”, although it is unclear as to what body part this reference is made.
On 3 November 2006, the clinical notes entry reads:
“R > L LBP
2002 – work injury Woolworths – lifting out ‘coffin freezer’
sudden spasm –spasm that p.m. -> physio
ongoing intermittent back pain.” (emphasis added)
Attendances on the doctor from 14 November 2006 refer to right more than left sided low back pain radiating to right leg. On 5 December 2006 there is recording of the Worker using PWB (partial weigh bearing) crutches. An examination in June 2007 referred to fluctuating and worsening pain since April 2006 and pain radiating into right leg exacerbated by sitting and standing. The last entry is on an indecipherable date in July 2007 and states that the Worker was provided with a repeat prescription for “endep 20 mg”.
Woolworths relied on a medico-legal report from Dr Barrett, orthopaedic surgeon, dated 14 December 2006. The doctor recorded that the Worker stated that he worked in a permanent capacity, 40 hours per week at Woolworths at Gordon as a perishable assistant. His work involved re-stocking and rotating perishable goods. The doctor obtained a consistent history of the work injury on 10 October 2003. Mr Broun stated that after he arrived home in pain, a friend drove him to his general practitioner in Hornsby. He was treated with voltaren and referred for physiotherapy treatment. He had three weeks off work, returned to light duties and on 6 November 2003 was certified fit for pre-injury work.
Dr Barrett noted that during the time that Mr Broun was performing selected duties, he was promoted to the storeroom/dockhand position. He continued in this job for 12 months. He stated that he continued to experience back pain during this period and attended for approximately 20 physiotherapy treatments. He resigned in November 2004, the reason being “too much responsibility”. The doctor noted that for the next 15 months he worked 35 hours per week unpaid in his father’s café. In January 2006 he began working for a landscaper but could not cope after a few months and had not worked since.
The doctor noted that ten months prior to his examination the Worker developed right leg pain and associated pins and needles. He attended Dr Buddee who prescribed anti inflammatory medication, physiotherapy, and the use of crutches for three weeks.
Mr Broun denied experiencing any back symptoms prior to the injury in October 2003, but did inform the doctor that he sustained a hernia lifting at the Greengate Hotel in 1998.
Dr Barrett recorded some inconsistencies on formal and informal examination including the Worker’s ability to lean forward in the sitting and standing position. The doctor diagnosed a non-specific mechanical lumbar back pain with non-verifiable radiculopaphy. He believed that the initial injury was a soft tissue injury and the prognosis was guarded but the Worker was fit for pre-injury work and had in fact performed normal duties for 12 months after the injury. The doctor stated that Mr Broun’s employment had been a substantial contributing factor to the injury but “workplace aggravation has now ceased”. The doctor assessed a 0% WPI.
Woolworths also relied on the Worker’s letter of resignation, which simply stated that he resigned from 8 November 2004.
Ms Terese Borg prepared a hand written signed statement dated 8 November 2004 which appears to be a notation prepared by her on the date of the Worker’s resignation in which she had an argument with Mr Broun about work allocation. Mr Broun complained that he was allocated too much work and, after what appears to have been a heated discussion, which included Ms Borg saying to the Worker, if he did not want to do his job he was free to resign. The Worker resigned effective immediately and left the premises.
Ms Tegan Smith also prepared a signed statement dated 8 November 2004 confirming that she had been present during Ms Borg’s conversation with Mr Broun leading up to and including the tendering of his resignation and her statement accords with that of Ms Borg.
Mr Stuart McAllister also prepared a signed statement dated 4 September 2007, the copy on the Commission file is a poor quality faxed copy on which hand written corrections have been made in addition to a clearer copy of the statement which is not signed and does not contain the handwritten amendments. Mr McAllister was previously employed as the perishables manager of the Gordon store between 2001 and 2004. He stated that he had neither recollection of Mr Broun sustaining an injury nor any recollection of Mr Broun discussing an injury with him.
DISCUSSION AND FINDINGS
Injury
Mr Broun submits that the Arbitrator erred in the application of section 4 of the 1987 Act, particularly in her finding that the injury was an aggravation of an earlier football injury, because there is no evidence that the earlier injury resulted in incapacity or any prolonged symptoms.
Woolworths submits on appeal that the Arbitrator did not make a finding that the Worker’s injury was “an aggravation of an earlier football injury”. The Arbitrator went no further than to state that it was “very possible that the injury…was an aggravation of an old football injury” and the Arbitrator found, based on the evidence of Dr Elison that the Worker’s assertion that he had no back injury prior to 2003 was incorrect. Further Woolworths submits that:
“The arbitrator has not made many [sic-any] other findings in terms of causation, or as to the existence of pre-existing factors, which alter the legal significance of a finding of injury with [sic] section 4.”
The order made by the Arbitrator as quoted in paragraph [8] above is as follows:
“Award in favour of the Applicant for an aggravation of a pre-existing injury to the lumbar spine in relation to an injury sustained at work on 10 October 2003 when he bent over to pack tubs of ice-cream into a low freezer” (emphasis added).
At paragraph [22] of her Statement of Reasons for Decisions (‘Reasons’) the Arbitrator said:
“In the medical reports the Applicant consistently refers to an incident at work on 10 October 2003 and provides consistent details of how the accident occurred. A claim was accepted by the Insurer. On the balance of probabilities I am persuaded that the Applicant did receive an injury to his lumbar spine as set out in his claim and his employment with the Respondent was a significant [sic- substantial] contributing factor. Despite the Employer stating that he was not paid for any time off work, the medical certificates are quite clear that he was off work for a short period of time (around 10 days) and that he returned to work on light duties for a further period of time. I suspect the reason that the Employer records no time off work is because at the time of sustaining the injury the Applicant was employed as a casual, therefore only got paid for the hours he actually worked, and he probably did not submit a claim for weekly compensation payments” (emphasis added).
The Appellant’s grounds of appeal are essentially that there was no evidence to support the finding and subsequent order made by the Arbitrator.
Beazley JA in Ormwave Pty Ltd & Anor v Smith [2007] NSWCA 210 in considering an appeal on the basis that there was no evidence to support a finding of entry into a NSW contract of employment referred to the authorities at [12]-[16] as follows:
12. In this case, the principal basis of error advanced on the appeal was that there was no evidence to support the finding of entry into the NSW contract. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33; Mason CJ stated at 355-56:
‘The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law ... So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law.’ (Citations omitted)
His Honour continued at 359:
‘A finding of fact will then be reviewable on the ground that there is no probative evidence to support it and an inference will be reviewable on the ground that it was not reasonably open on the facts ...’
13. Mason CJ, in dealing with the decided cases in this area, referred to The Australian Gas Light Co v The Valuer-General (1940) 40 SR (NSW) 126 at 138, where Jordan CJ said:
‘...
(3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences
(4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences ...’
See also McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8; Sinclair v Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473 at 481, 483; [1975] HCA 17; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 per Kirby P and at 155-56 per Glass JA (Samuels JA agreeing); Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 at 467; [2001] HCA 12 per Kirby J; Roads and Traffic Authority of New South Wales v Mosca (2006) 146 LGERA 335; [2006] NSWCA 159 at [69] per Handley JA (Mason P and Bryson JA agreeing).14. There has been a long jurisprudential history in this State based on this Court’s decision in Azzopardi that even perverse findings of fact do not give rise to an error of law. That proposition remains good law. However, a decision-maker who acts without probative evidence may be seen as acting without evidence: see Bruce v Cole (1998) 45 NSWLR 163 per Spigelman CJ (Mason P agreeing), where his Honour, in considering the decision of this Court in Azzopardi, stated at 188-89:
‘... a decision-maker who acts without probative evidence ... does not make a valid decision. It is the equivalent of acting without evidence.’
See also Skiwing Pty Ltd v Trust Company of Australia (Trading as Stockland Property Management) [2006] NSWCA 276 per Spigelman CJ (Bryson JA agreeing) at [52]-[53].15. In Haider v JP Morgan Holdings Aust Ltd t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158, Basten JA (McColl JA agreeing), explained at [33]:
“... Broadly speaking, error of law will arise in circumstances where a fact is found where there is in truth no relevant and probative material capable of supporting it, or an inference is drawn form a particular fact, which is not reasonably capable of supporting the inference: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 367 (Deane J), referred to by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222 at [25]; and see Bruce v Cole (1998) 45 NSWLR 163 at 187-189 (Spigelman CJ).”
16. It is not clear how the principle stated in Azzopardi will continue to operate within the modern statement of the ‘no evidence’ rule. However, that question does not rise for consideration here. It was not said the factual finding was perverse. Rather, it was said there was no evidence to support the finding of the NSW contract.”
In the matter before me, the Arbitrator relied on the evidence as contained in Mr Broun’s statement in relation to the injury. She noted that the Worker could not recall the date of the injury however a claim form was completed by both the Worker and the Employer on 13 October 2003 referring to the incident and injury on 10 October 2003. She also noted that in giving the history of the incident to doctors, the Worker was consistent in his description of the event.
The Arbitrator also referred to the medical certificates from Dr Hadgis, which she found established that the Worker was unfit for work from 11 October 2003 to 13 October 2003, fit to return to work on suitable duties from 20 October 2003 and fit for pre-injury duties from 6 November 2003. The diagnosis as recorded by Dr Hadgis was lumbar back strain with posterior faccitis. The Arbitrator also referred to the Employer’s response to a request for particulars from the Worker’s solicitors which indicated that the Employer had made payments of medical expenses following the injury but no compensation payments for weekly compensation had been made and the Employer submitted therefore that the Worker had not lost any time from work (see Reasons paragraphs [20] to [21]).
The Arbitrator appears to have misinterpreted the certification from Dr Hadgis in the certificate dated 13 October 2003, in which Dr Hadgis not only diagnosed lumber back strain with posterior fasciitis and certified the worker unfit for work from 11 October 2003 to 13 October 2003, but also certified the Worker fit for suitable duties from 14 October 2003. This would therefore suggest that Mr Broun was only certified unfit for work for three days from 11 October 2003 to 13 October 2003, not ten days as found by the Arbitrator and this together with the evidence that the Worker’s pre-injury hours were 15.35 to 17 per week, accords more closely with the Employer’s assertion that no weekly compensation payments were made after the injury for any time off work.
Whilst the Arbitrator was correct in noting that the onus lay on the Worker to establish injury, she incorrectly stated that the Worker must prove on balance that “he suffered a personal injury arising out of he [sic] course of his employment”. Under section 4, injury is defined as a “personal injury arising out of or in the course of employment”.
The Employer quite properly in my view conceded that an injurious event occurred on 10 October 2003. Mr Aitkin’s for Woolworths submitted at the arbitration hearing that the causative link between the work injury and the current claim for incapacity was the real issue in dispute between the parties, rather than the issue of injury per se when he said:
“Madam Arbitrator, the respondent says this is a difficult case, and one of the difficulties is in relation to the contemporaneous evidence. The respondent concedes that in October 2003 something happened to this gentleman, but the important thing is what actually flowed from the complaint made at work”(emphasis added) (transcript page 6, lines 25-30).
The evidence in relation to injury consisted of the claim form completed by both the Worker and Employer on 13 October 2003, which noted that the Worker had reported the injury on 11 October 2003 and described the injury as low back strain. There were also the contemporaneous medical certificates of Dr Hadgis referred to above in paragraph [44]. The evidence of Mr McAllister, the perishables manager, in his statement dated 4 September 2004, that he stated he had no recollection of the Worker suffering injury was not consistent with the claim form completed by the Employer three days after the injury.
Whilst there was evidence to support the Arbitrator’s finding that the Worker suffered injury to his back on 10 October 2003, the Arbitrator’s finding of injury “as claimed” (paragraph [22] of her Reasons) is unhelpful in that the claim made in the Application to Resolve a Dispute simply stated:
“the Applicant suffered injury to his back and right leg as a result of lifting three tubs of ice-cream and bending to place same in the coffin freezer”
The Employer’s section 74 Notice placed section 9A in issue, however, at the hearing the Employer made no submissions on the application of section 9A. Given the circumstances of the injury occurring when Mr Broun was performing his duties of loading ice cream tubs into a freezer, the Arbitrator was satisfied that employment was a substantial contributing factor to the injury, although she unfortunately expressed her finding as a “significant” contributing factor. Such a finding, correctly expressed, was also open to her on the evidence.
The reference the Arbitrator made to the work injury being “a possible aggravation of an earlier football injury” was firstly said in the context of her discussion on the causative relationship between the work injury and the Worker’s alleged ongoing incapacity. At paragraph [31] of her Reasons the Arbitrator said:
“I am not convinced that on the balance of probabilities the Applicant has any ongoing incapacity as a result of the injury he sustained in 2003 while working for the Respondent and it is very possible that the injury that occurred when he bent over the coffin freezer to stack tubs of ice-cream was an aggravation of an old football injury.”
Secondly, the Arbitrator restated this finding in the formal order she made in relation to injury (see paragraph [8] above) and therefore I cannot accept the Employer’s submission that she went no further than to state it was “very possible that the injury…was an aggravation of an old football injury”.
In considering whether the Arbitrator erred in making such a finding and subsequent order, as submitted by the Appellant, I now turn to the evidence that was before her in relation to any pre-existing injury.
The evidence in relation to earlier back symptoms was contradictory. The Worker in his statement denied any prior back injury and both Dr Barrett and Dr Neophyton recorded histories of no prior back symptoms. This is clearly not correct given the recordings in the clinical notes of Dr McGilvery, relied on by the Worker.
As noted in paragraph [58] above, Mr Broun consulted Dr McGilvery as early as May 2002 complaining of low back pain and, there are further references to attendances for back pain in the doctor’s clinical notes after this consultation but they are indecipherable. The bone scan report from Dr Elison dated 24 May 2002 records the reason for the scan being that Mr Broun was a rugby player with a four-month history of low back pain. The scan was requested to eliminate a possible pars fracture as the cause of the pain. The result of the scan was that no bony pathology was identified. In addition, on 22 November 2004 the Worker attended Dr McGilvery complaining of a sacro-iliac joint problem and he was referred for x-rays.
Whilst there was evidence before the Arbitrator that was contrary to the Worker’s denial of previous back problems prior to the work injury, that evidence went no higher than evidencing a history of previous back symptoms, significant enough for the Worker to seek treatment and undergo radiological investigation, including a bone scan in 2002 to exclude bony pathology, however, the records available fail to disclose the cause of the pain or a diagnosis. Mr Broun had been a rugby player and had experienced back pain from at least as early as 2002, but there was no evidence that Mr Broun had previously suffered a back injury.
The Worker clearly had a history of back pain and sacro-iliac discomfort and clicking, however there was no evidence to support the finding that Mr Broun had sustained a previous injury to his back, such that the work injury constituted an aggravation of that “old injury”.
The Arbitrator failed to make a finding as to the nature of the back injury sustained by Mr Broun with Woolworths. This omission together with the fact that there was no evidence as to the nature or cause of the earlier back symptoms, means there is also no evidence upon which to conclude that the work injury was an aggravation of an “old injury” and the Arbitrator erred in making that finding.
Incapacity and Causation
The Appellant submits that:
(i) there was no evidence for the Arbitrator to find that “the earlier [football] injury resulted in incapacity or any prolonged symptoms being suffered by the Applicant”;
(ii) the Arbitrator failed to adequately explain her finding of no economic incapacity in the presence of ongoing back pain, and whether the work injury was causative of the ongoing symptoms, and
(iii) in the absence of any other later traumatic event or cause for the findings in the MRI scan, the Arbitrator fails to adequately explain why she does not find them significant and causally related to the work injury.
In reply, Woolworths submits that:
(i) the existence of back pain itself does not give rise to a finding of economic incapacity;
(ii) the Arbitrator made a finding that the economic effects of the injury ceased as at the date of the Worker’s resignation on 8 November 2004;
(iii) there was ample “scope” on which to make such a finding, including Mr Broun’s work history after the injury, particularly the fact that he worked unrestricted in normal duties from the date of injury to his resignation 13 months later. The Arbitrator’s findings were consistent with the evidence, and
(iv) the observations by the Arbitrator that Mr Broun engaged in heavy physical work after the injury and this could have caused the pathology evident on the MRI scan and the symptoms that caused the Worker to stop work in August 2006 were “plausible observations”. The lack of temporal connection between the work injury and the MRI scan is made more significant by the heavy physical work Mr Broun performed between 2003 and 2006.
Prior to the arbitration hearing, the Worker filed an application to admit late evidence which included a letter dated 25 July 2007 giving notice to the Employer amending the claim under section 66 to increase the whole person impairment in accordance with Dr Neophyton’s supplementary report dated 18 July 2007 based on the MRI scan report dated 22 November 2006, and also to bring a claim under section 67 of the 1987 Act.
At the commencement of the arbitration hearing on 4 September 2007, the Arbitrator heard submissions from Mr Aitkins, solicitor, for Woolworths, objecting to the admission into evidence of Dr Neophyton’s supplementary report but suggesting that the issue could be determined at the conclusion of the hearing.
Mr Aitkins submitted that the Employer needed an opportunity to obtain additional supplementary evidence in reply to the late evidence served by the Worker and to provide its doctor with Dr McGilvray’s notes (presumably containing the MRI scan report dated 22 November 2006) and Dr Neophyton’s report.
Mr Carney, Counsel for the Worker, appeared to agree that Mr Aitkins’ objection could be dealt with at the end of the matter. Further Mr Carney submitted that the Worker sought to have admitted the report only for provision to the Approved Medical Specialist. Mr Carney submitted:
“It can be. I mean, obviously what we’d say is that to go to an AMS, and I think that’s the only relevance of it.” (transcript page 2, lines 36-39)
Neither at the commencement, nor at the conclusion of the hearing did the Arbitrator rule on the admission of this evidence, however, these documents appear listed on paragraph [16] of the Arbitrator’s Reasons as “evidence before the Commission and taken into account in making this determination.”
On the issue of causation and incapacity the Arbitrator found at paragraph [31]:
“I am not convinced that on the balance of probabilities the Applicant has any ongoing incapacity as a result of the injury he sustained in 2003 while working for the Respondent and it is very possible that the injury that occurred when he bent over the coffin freezer to stack tubs of ice-cream was an aggravation of an old football injury.”
At paragraph [32] the Arbitrator gave her reasons in support of the finding:
“In making this finding I rely mainly on the Applicant’s own statement. He says he was healthy and had no back injury prior to the 2003 injury. This is clearly not correct. I rely on the report of Dr Elison as proof of an earlier injury to the lumbar spine which caused significant symptoms. At the time of sustaining his injury with the Respondent, the Applicant worked part time (around 15.5 hours per week). Following the injury he accepted a full-time position with the Respondent undertaking heavy physical work as a dockman and he remained in that position for twelve months until his resignation. His employment record after October 2003 indicates that he was able to earn considerably more income than at the time of the injury. Despite his claims that he reported his symptoms to his superiors on a regular basis and that his resignation was based on him experiencing symptoms associated with his duties, there is absolutely no evidence to support these claims. Finally, while it is clear that he has an injury to his lumbar spine, as evidenced in the 2006 MRI, I am not convinced that this injury results from the 2003 injury. After leaving the Respondent he then works almost continuously for three years in positions that involve bending, twisting and heavy lifting. This work could easily have caused the injury evident on the MRI and the symptoms that caused him to cease work in August 2006. I do not accept the opinion of Dr Neophyton that the pathology of the low back is casually linked to his employment with the Respondent. Apart from the time lag in having the MRI, it is not appropriate to make such an assessment without commenting on the Applicant’s employment between 2004 and 2006 and his recreational activities.”
The Arbitrator found that the Worker “has no ongoing incapacity as a result of the injury” (paragraph [31] of her Reasons). In paragraph [33] under the heading “Summary” she stated:
“Weekly Benefits Claim:
Any incapacity resulting from the injury that occurred on 10 October 2003 ceased by the date he resigned from the Respondent on 8 November 2004 and he has no entitlement to weekly compensation payments”
The 8th of November 2004 is the last date on which the Mr Broun worked for Woolworths and the day that he tendered his resignation, effective immediately, after an altercation with Ms Borg. Prior to his resignation Mr Broun had been working fulltime hours in the dock in the job he had been promoted to shortly after his injury. It is also the date from which the Worker brought his claim for weekly compensation on the basis of partial incapacity.
The test of whether a Worker’s incapacity has resulted from the injury is the test set out in the judgment of Kirby P, (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 464:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
The Arbitrator did not refer to the test in Kooragang. She only referred to the authorities in relation to section 33 of the 1987 Act, as uplifted from the notes to that section in the Mills Workers Compensation Service page 2857 as follows:
“Lord Loreburn in Ball v William Hunt & Sons Ltd [1912] AC 496 as:
‘…there is incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity for work when such a defect makes his labour saleable for less than it would otherwise fetch’.
This test was approved and adopted by the High Court in Ward v Corrimal-Balgownie Colliers Ltd (1938) 61 CLR 120 and in Williams’s v Metropolitan Coal Co Ltd (1948) 76 CLR 431”(reasons paragraph [23]).
It is accepted that issues of injury and causation are matters for Arbitrators to determine (see Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124).
As noted by Acting Deputy President Bill Roche (as he then was) in Russell v Labourforce Solutions Pty Limited [2006] NSWWCCPD 330 at [64]:
“…the Arbitrator failed to make any finding as to what injury the Appellant Worker sustained on 8 February 2005 and, as a consequence of that failure, was unable to properly determine whether her incapacity resulted from that injury. It is not always essential (though it is always prudent) for an Arbitrator to determine the exact nature of the injury sustained but it is necessary, once a finding of injury has been made, for a further finding to be made as to whether the effect of that injury have ceased or are continuing. That additional finding is necessary as there will often be (as there is in this case) more than one cause of the particular incapacity. Without a finding that the effect of an injury has ceased it may be impossible to determine whether incapacity has ‘resulted from’ the particular injury, from some other cause, or partly from the injury and partly from another cause. It may also be impossible to determine whether medical and hospital expenses under section 60 of the 1987 Act are ‘reasonably necessary’ as a result of the found injury” (emphasis added).
In the present case it was essential for the Arbitrator to determine the exact nature and extent of the injury sustained by Mr Broun at work on 10 October 2003. This is particularly so given the circumstances of this case including the conflicting medical and lay evidence as to the nature of the injury, and the effects of that injury, noting:
· the period of time the Worker was certified unfit following the injury (Dr Hadgis certificate dated 13 October 2003);
· the initial diagnosis of a soft tissue injury (Dr Hadgis certificate dated 13 October 2003),
· the reference in the physiotherapy plans to treatment directed at “L5-S1 disc irritation [and] poor lumbo-pelvic stability” (Physiotherapy plans dated 10 December 2003 and 13 January 2004);
· the reference in the physiotherapy plans to “23 March 2002”(a date 18 months prior to the work injury) as the a date of the initial treatment of the area [lumbar spine];
· the incomplete histories relied upon by the medical experts;
· Mr Broun’s work capacity in manual and labouring jobs demonstrated after the injury;
· Mr Broun’s complaints of symptoms including the development of right leg symptoms, and
· the pathology as demonstrated on the MRI scan conducted three years after the injury.
Whilst a worker can have an entitlement to weekly compensation in the absence of, or with modest permanent whole person impairment, it is equally possible for a worker with significant permanent whole person impairment to have no economic incapacity. As recently considered by Deputy President Roche in Basit v Haden FM Pty Ltd t/as resolve FM [2008] NSWCCPD 24 at [60]:
“The question of the extent of any pre-existing impairment is of limited relevance in determining an entitlement to weekly compensation consequent upon a compensable work injury and it is certainly not determinative. It is not uncommon to see workers with a significant permanent whole person impairment who have no economic incapacity. On the other hand some workers who have either no permanent impairment or a very modest impairment may, because of the nature of their disability, work experience, and training have a significant economic incapacity in the labour market reasonably accessible to them. A worker with a 10% whole person impairment may have no economic incapacity, but a relatively minor work injury that results in the worker’s impairment increasing to 12% may have serious consequences for the worker on the open labour market. Similarly, the reverse may occur and an increase in permanent impairment may have no affect on a worker’s entitlement under section 40 of the 1987 Act (Blayney Abattoirs Pty Ltd v McConnell & ors (1998) 16 NSWCCR 205). There is no automatic correlation between the extent of a permanent impairment and the level of compensation under section 40 of the 1987 Act.”
In determining the issue of causation, the Arbitrator was not only required to determine whether any subsequent and ongoing incapacity, as claimed, was causally related to the work injury, but given the claims for ongoing medical expenses and claims for lump sum compensation for permanent impairment and pain and suffering, the Arbitrator was required to make a clear finding on whether the Worker continued to suffer from the effects of the injury.
If the Arbitrator found that the effects of the injury were continuing, then, even though there has been a finding of no economic incapacity from 8 November 2004, the question of whether Mr Broun has suffered any permanent impairment as a result of his injury and, if so, the extent of that impairment, must be referred to an Approved Medical Specialist for assessment.
If, however, the Arbitrator was satisfied that on the evidence the Worker had recovered from the effects of the work injury and it was on this basis that he had no ongoing economic incapacity, then it was neither necessary nor appropriate to make a referral to the Approved Medical Specialist (see Total Steel of Australia Pty Limited v Waretini [2007] NSWWCCPD 33).
Whilst both parties submissions on appeal suggest either expressly or by implication, that the Arbitrator made a finding of ongoing back pain as a result of the injury, but found it did not give rise to economic incapacity (see para [85] – [86] above), I am not satisfied that the Arbitrator’s reasons disclose such a finding.
In relation to whether the effects of the work injury are continuing, at paragraph [27] of her Reasons, the Arbitrator noted that the Worker receives fortnightly physiotherapy treatment and she referred to his statement:
“At paragraphs 67 and 68 of his statement he claims to experience daily pain in the lower back, upper right thigh and right knee and sometimes into the calf. He can not lift anything over about 10 kgs or less by himself and riding a pushbike, driving and surfing have become difficult.”
The Arbitrator also referred to Dr Neophton’s opinion that the he was satisfied that there was a direct casual relationship between the work injury and the current problems the Worker has in his back and right leg (see Dr Nephyton’s report dated 12 October 2006). In expressing this opinion the doctor relied on the history provided to him by the Worker that after the injury in 2003 he had an MRI scan which disclosed a ruptured disc. The doctor did not sight this scan nor was any such scan or report of a scan in evidence. As previously noted there was no referral for a scan recorded in Dr Hadgis the treating doctor’s certificates. After reviewing the MRI scan report dated 22 November 2006, Dr Neophyton doubled his assessment under section 66 of the 1987 Act and revised his prognosis that the pathology will cause Mr Broun “major problems in the future”.
The Arbitrator rejected the evidence of Dr Neophyton on the basis of the delay in time between the injury in 2003 and the MRI scan in 2006 and the fact that Dr Neophton failed to refer to, or consider, the Workers “employment between 2004 and 2006 and his recreational activities” (Reasons paragraph [32]). The Arbitrator stated that Mr Broun’s post injury employment activities could be causative of the pathology demonstrated on the MRI scan. At paragraph [32] of her Reasons she said:
“After leaving the Respondent he then works almost continuously for three years in positions bending, twisting and heavy lifting. This could easily have caused the injury evident on the MRI and the symptoms that caused him to cease work in August 2006.”
The Arbitrator, made no clear finding on causation in relation to whether the Worker had recovered from the work injury, or alternatively, if he had not recovered from the work injury and continued to experience ongoing symptoms as a result of the work injury, what the nature of the injury was and what the ongoing effects of the injury were. Failure to make these findings constitutes an error of law.
Further, the Arbitrator’s decision in awarding the payment of section 60 expenses up to 7 November 2004 without any reasons to support such a decision creates further ambiguity as to whether she was finding that from this date the Worker had recovered from the injury.
I am therefore not satisfied that the Arbitrator properly determined the issue of injury and causation in this matter and in failing to do so has erred in law and her decision cannot stand and must be revoked.
Whilst it is preferable where appropriate, for a Presidential member who having revoked the Arbitrator’s decision re-determine the matter if possible, given the Employer seeks to obtain further medical evidence in reply to the late evidence served by the Worker (see paragraph [97] above), this matter should be remitted for determination afresh by a different arbitrator who can make appropriate directions to ensure that all evidence upon which the parties intend to rely is before the Commission.
DECISION
The decision of the Arbitrator dated 17 October 2007 is revoked and the matter is remitted to a different Arbitrator for determination afresh.
The costs of the first arbitration hearing are to be determined by the new Arbitrator at the conclusion of the rehearing.
COSTS
The Respondent is to pay the Appellant’s cost of the appeal.
His Hon. Judge Greg Keating
President
31 March 2008
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON. JUDGE GREG KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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