Cadbury Schweppes Australia Limited v Johnson & Johnson Pacific Ltd and Riordan
[2008] NSWWCCPD 28
•29 February 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Cadbury Schweppes Australia Limited v Johnson & Johnson Pacific Ltd and Riordan [2008] NSWWCCPD 28
APPELLANT: Cadbury Schweppes Australia Limited
FIRST RESPONDENT: Johnson & Johnson Pacific Ltd
SECOND RESPONDENT: Kathleen Ann Riordan
APPELLANT’S INSURER: Self-insured
FIRST RESPONDENT’S INSURER Self- Insured
FILE NUMBER: WCC6639-07
DATE OF ARBITRATOR’S DECISION: 1 November 2007
DATE OF APPEAL DECISION: 29 February 2008
SUBJECT MATTER OF DECISION: Injury, section 9A and apportionment under section 22 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: President Greg Keating, DCJ
HEARING:On the papers
REPRESENTATION: Appellant: Lee & Lyons Lawyers
First Respondent: Corrs Chambers Westgarth Lawyers
Second Respondent: no appearance
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 1 November 2007 is confirmed.
The Appellant to pay the First Respondent’s cost of the appeal
No order as to costs of the Second Respondent to the appeal.
BACKGROUND TO THE APPEAL
On 29 November 2007 Cadbury Schweppes Australia Limited (‘the Appellant / Cadbury’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 1 November 2007.
The First Respondent to the Appeal is Johnson & Johnson Pacific Pty Ltd (‘the First Respondent / Johnson & Johnson’) and Ms Kathleen Riordan, is the Second Respondent, although no appearance has been entered for Ms Riordan on appeal.
Ms Riordan sustained injury to her back on 9 April 2006, whilst employed with Cadbury stocking chocolate when a display case weighing about 160 kg collapsed on her. She was required to support the partially collapsed case for several minutes until some customers provided assistance. It required three people to push the display case into the vertical position.
On 7 March 2007, whilst employed by Johnson & Johnson, Ms Riordan claims to have suffered a “re-aggravation” of the injury of 9 April 2006, when she experienced low back pain while bending repetitively to stack cosmetics on a low shelf.
Ms Riordan sought compensation from Cadbury. A section 74 Notice issued by Cadbury denied liability on the basis that the back injury was caused by the incident on 7 March 2007. Ms Riordan also gave notice of a claim to Johnson & Johnson.
On 31 August 2007 Ms Riordan filed an ‘Application to Resolve a Dispute’ in the Commission claiming weekly compensation at various rates from 7 March 2007 to 17 May 2007 and medical expenses totally $1, 394.40 against both Cadbury and Johnson & Johnson.
Cadbury filed a Reply on 21 September 2007 denying liability in accordance with its section 74 Notice, and Johnson & Johnson filed a Reply denying that Ms Riordan had suffered an injury during her employment with Johnson & Johnson. It (Johnson & Johnson) alleged Ms Riordan had suffered an exacerbation of the injury previously sustained at Cadbury.
The parties were unable to resolve the dispute and the matter proceeded to an arbitration hearing on 26 October 2007. All parties were represented. No oral evidence was given, and after submissions from the parties, the Arbitrator delivered an ex tempore decision. His reasons were recorded and a transcript of the proceedings has been provided to the parties. On 1 November 2007, the Commission issued the Certificate of Determination. It is from this decision that Cadbury now seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 1 November 2007 records the Arbitrator’s orders as follows:
1.There is an award for the Applicant in respect of her claim for injury and resulting incapacity for the period from 7/3/2007 to 17/5/2007.
2.I determine that on 9 April 2006, the Applicant suffered a personal injury arising out of and in the course of her employment with the First Respondent and for which her employment was a substantial contributing factor.
3.I determine that on 7 March 2007, whilst working for the Second Respondent, the Applicant suffered an exacerbation of that prior injury which triggered off her previous symptoms.
In respect of Weekly Benefits:
4.I further determine that the First Respondent is liable to compensate the Applicant for the period of incapacity that resulted from the injury of 7 March 2007, pursuant to the Workers Compensation Act 1987, (‘the Act’) as follows:
a)For the period of total incapacity, pursuant to s 36 of the Act, from 7/3/2007 to 6/4/2007, at the rate of $516.68 per week.
b)For the period of partial incapacity, pursuant to s 40 of the Act, from 7/4/2007 to 13/4/2007, at the rate of $145.85 per week.
c)For the period of total incapacity, pursuant to s 36 of the Act, from 14/4/2007 to 23/4/2007, at the rate of $516.68 per week.
d)For the period of partial incapacity, pursuant to s 40 of the Act, from 24/7 [sic-4] /2007 to 17/5/2007, at the rate for a single worker with no dependants, of $361.30 per week.
In respect of Medical Expenses:
5.The First Respondent is to pay the Applicant’s claim for medical expenses incurred to date, pursuant to s.60 of the Workers Compensation Act 1987 in the sum of $1,394.40.
In respect of Costs:
6. The First Respondent is to pay the Applicant’s costs as agreed or assessed.
7.Pursuant to s 341 of the Workplace Injury Management and Workers Compensation Act 1988, I determine that the first Respondent is to pay the Second Respondent’s costs which it incurred from the date of the telephone conference on 5 October 2007.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are that the Arbitrator erred by:
a) failing to find that the injury sustained on 7 March 2007 was an “injury” within the meaning of section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’) and finding instead that the “exacerbation” suffered by Ms Riordan on 7 March 2007 was caused by the injury sustained on 6 April 2006 and not as a result of her employment with Johnson & Johnson;
b) finding that Ms Riordan’s incapacity from 7 March 2007 to 17 May 2007 was causally related to the injury sustained on 9 April 2006 and not the injury sustained on 7 March 2007;
c) failing to apportion compensation between Cadbury and Johnson & Johnson under section 22 of the 1987 Act; and
d) by ordering that Cadbury’s pay Johnson & Johnson’s costs from 5 October 2007 under section 341 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
ON THE PAPERS REVIEW
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 Numbers 1 and 6, the documents that are before me, and the submission by the Appellant and the First Respondent (noting the Second Respondent does not appear on the appeal), 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
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 lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Both parties to the appeal submit and I am satisfied that the whole of the compensation awarded is in issue and the amount of compensation exceeds $5000.00 and therefore the thresholds under section 352(2)(a) and (b) of the 1998 Act.
Leave to appeal is granted.
Neither part seeks to rely on fresh evidence.
ARBITRATOR’S DECISIONS
The Arbitrator found that the exacerbation or incident on 7 March 2007 whilst the Worker was employed by Johnson & Johnson was “merely an exacerbation of an old injury in that it simply triggered off the symptoms that related to the earlier significant injury in April 2006” (transcript page 27, line17-21).
Further, the Arbitrator found that the Worker had suffered an injury to her back on 9 April 2006 whilst employed by Cadbury and the employment was a substantial contributing factor and as a result of that injury she was incapacitated from 7 March 2007 to 17 May 2007.
The Arbitrator awarded compensation for four distinct periods under section 36 and 40 at various rates, compensation under section 60 totalling $1,394.40 payable by Cadbury and also indicated an intention too make a cost order that Cadbury pay the costs of the Worker and Johnson & Johnson’s costs. The Arbitrator sought further submissions on his power to make such an order, after which he duly made a costs order under section 341 of the 1998 Act as recorded in the Certificate of Determination (see paragraph [9] above).
SUBMISSIONS
Cadbury’s submissions
Cadbury does not dispute that Ms Riordan sustained injury on 9 April 2006 or that she was incapacitated for the period 7 March 2007 to 17 May 2007.
Cadbury however submits there was sufficient evidence for the Arbitrator to find that the Worker had suffered a ‘person injury’ within the meaning of section 4 of the Act on 7 March 2007 whilst employed by Johnson & Johnson.
Cadbury submits that after the injury on 9 April 2006, Ms Riordan continued to work for Cadbury until her employment terminated on 28 July 2006. She maintained and increased her hours in her concurrent employment with Johnson & Johnson and obtained further employment with McPherson’s Consumer Products and a short additional period of employment with the Byron Bay Blues Festival at Easter 2007.
There was “at least a temporal link” between the injury on 7 March 2007 and her employment with Johnson & Johnson sufficient to satisfy the definition of injury and also to satisfy the requirements of section 9A.
Cadbury submits that there was no evidence of a history of exacerbation of pain between 9 April 2006 and 7 March 2007 and it was not until Ms Riordan engaged in repetitive bending on 7 March 2007 that there was an exacerbation of pain and therefore her employment was a substantial contributing factor to her injury, consistent with the authority of Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740.
Cadbury relies on the following evidence:
a) the history of pain after the injury on 7 March 2007 was different to the history of pain following the injury on 9 April 2006 and was located slightly higher in her back and she also experienced pain in her stomach;
b) the CT scan after the 2006 injury revealed no evidence of disc pathology;
c) the MRI scan after the 2007 injury revealed an annular tear and disc herniation;
d) Dr Ashwell refers to the March 2007 injury as a ‘second injury’, and
e) Ms Riordan returned to normal duties for six months prior to the March 2007 injury.
The incapacity claimed from 7 March 2007 was casually related to the nature of the duties performed by Ms Riordan on that day and not the injury 11 months earlier. But for the work undertaken on 7 March 2007, Ms Riordan would not have suffered that period of incapacity.
In the alternative, Cadbury submits that the period of incapacity resulted from both injuries and liability should be apportioned between the two under section 22 of the 1987 Act.
Johnson & Johnson’s submissions
The Arbitrator was entitled to find that the incident on 7 March 2007 was “an exacerbation or triggering off of symptoms resulting from a significant injury on 9 April 2006” and having found no injury the Arbitrator was not required to consider the application of section 9A.
It was open to the Arbitrator on the evidence to find that the period of incapacity claimed was a result of the April 2006 injury and she did not err in law by failing to apportion liability.
Ms Riordan had never fully recovered from the April 2006 injury and suffered a “re-aggravation” of that injury in March 2007.
The Arbitrator was entitled to accept the evidence of Drs Devine and Ashwel,l and Mr Verco, chiropractor, that the incident in March 2007 was “merely an exacerbation of an old injury and that it simply triggered off the symptoms that related to her earlier significant injury” (Notice of Opposition, page 5).
EVIDENCE
No oral evidence was lead at the arbitration hearing, however Ms Riordan relied on two statements, one unsigned dated 30 June 2006 and a signed statement dated 17 August 2007 The document dated 30 June 2006, describes in detail the events of 9 April 2006, for which liability has been accepted by Cadbury. The statement dated 17 August 2007, refers to two dates of injury, in the header 9 April 2006 and 7 March 2007. In paragraphs 11 and 12, Ms Riordan describes the events of 7 March 2007 as follows:
“11.On 7 March 2007 I was working for Johnson & Johnson at Coles in Goonellabah NSW completing a planagram in a store. This required me to bend down repeatedly and move cosmetics from one shelf and move them to a lower shelf. The work was not heavy or strenuous.
12.After a while I experienced pain in my low back. This would have been around 2.00pm. My back became stiff and inflamed. The pain progressively became worse over the next couple of days until I was unable to walk or sit by Sunday 11 March 2007.”
Ms Riordan states that she believed the injury to be an aggravation of the original injury of April 2006 and not a new injury. Further she states, that in her job she is required to twist and bend at the hip and required to get in and out of her car up to 20 times a day and the twisting aggravates her pain.
Ms Riordan relied on a medico-legal report prepared by Dr Ashwell dated 23 April 2007. Following his examination Dr Ashwell concluded that the injury on 9 April 2006 was the most significant injury and likely to have been the cause of the disc lesion found on the MRI scan dated 15 March 2007. In his opinion the episode at work at Johnson & Johnson on 7 March 2007 “was a minor exacerbation of her lumbar disc lesion with symptoms still ongoing” (page 5). The doctor also stated that the injury on 7 March 2007 was “a re-aggravation of the original injury on 9 April 2006”. Her injury was not stable and could not give a prognosis or an assessment of permanent impairment.
Dr Ashwell, in relating Ms Riordan’s present symptoms to the injury on 9 April 2006, explained that:
“Although the CT scan of 21 June 2006 does not show any disc protrusions this is not as accurate as an MRI study which unfortunately was not performed at the time. The injury on 9 April 2006 at work was the most significant and more likely to have caused a disc protrusion in her lumbar spine.”
Doctors at the Mullumbimby Medical Centre prepared three reports. Dr Devine, general practitioner, prepared a report dated 27 March 2007. The report notes that Ms Riordan had eight consultations with various doctors at the surgery from 9 June 2006 to 3 August 2006 including two consultations after the incident on 7 March 2007, on 14 and 23 March 2007. The doctor noted that the worker did not originally link her back pain with the display cabinet incident and was initially treated for a urinary tack infection but later investigated her back by ordering a CT scan, which failed to disclose any abnormality. Dr Devine had not seen the Worker since August or September 2006 and could make no comment on prognosis or further diagnosis.
Dr Devine prepared a further report dated 10 April 2007. The doctor referred to Dr Blue’s report and drew some distinctions in the conclusions reached. Dr Devine noted that Ms Riordan had mild but persistent back pain after the injury on 9 April 2006 and one of the reasons for changing work to Johnson & Johnson was that there was less lifting and standing and strain on her back. Dr Devine noted that on 7 March she suffered an exacerbation of lumbar pain, which included the site of the original pain and an area higher up. She did not experience the sciatica she had experienced after the first injury.
Dr Devine was of the opinion that the “flare-up” Ms Riordan experience in 2007 was related to the 2006 injury and she had done nothing at work or privately to explain the exacerbation and that ordinary day-to-day activities caused the exacerbation. He confirmed his opinion that the current pain was related to the 2006 injury.
Dr Honey prepared a report dated 30 June 2006. Ms Riordan gave a history of the work incident on 9 June 2006. She detailed the Worker’s attendances at the practice. The doctor attempted to excuse a possible delay in reporting the back injury to the doctors at the surgery on the basis that the worker had independently attended a chiropractor for treatment. The report did not otherwise address any of the issues relevant to the proceedings.
Mr Edmonds, physiotherapist, in a report dated 30 June 2006 referred to a:
“painful injury, involving sacro-iliac joints and soft tissue in the adjacent area are consistent with the event…when she caught a falling 100 kg confectionary display…”
Mr Verco, chiropractor, prepared an undated report addressed to the workers compensation insurance officer Ms Mitchel. Mr Verco states that Ms Riordan has:
“…well documented symptoms and signs that fit the pattern of a significant disc lesion on the 09/04/2006. Anyone familiar with reading MRI scans would agree the degree of annular tearing shown on the MRI scan does not fit the pattern of a minor lifting injury 1 week prior.”
A MRI scan report from Dr Singh dated 16 March 2007 concluded that there was a right-sided annular tear and small disc protrusion at the L4/5 disc without canal or foraminal compromise.
Dr Belich provided a WorkCover Medical Certificate dated 12 April 2007, referring to an original injury on 9 April 2006 and a recurrence date of “7th/3”. He made reference to an L3/L4 disc herniation. This is inconsistent with the pathology recorded in all the other medical evidence and as such little weight can be given to it.
Cadbury’s medical evidence relied exclusively on Dr Blue’s report dated 21 March 2007.
Dr Blue’s report was prepared at the request of Cadbury. The doctor obtained a consistent history of the injury to her back on 9 April 2006 and he noted that Ms Riordan ceased work immediately but returned later that day to rebuild the display. She had the next day off work, after which she returned to work but experienced increasing low back pain and in June 2006 had two weeks off work. Her symptoms improved and she returned to work experiencing dull low backache until she ceased work with Cadbury on 28 July 2006. She however continued her concurrent employment at Johnson & Johnson where she had worked from February 2006. Her hours of work increased from an initial 11 hours to 20 hours per week. The work at Johnson & Johnson was similar to the work at Cadbury but required less work building displays. On Wednesday 7 March 2007 Ms Riordan was stacking shelves and “developed a severe relapse in her lower lumbar back pain” (page 2). She continued to work the next two days, but after the weekend was unable to get out of bed and at the time of Dr Blue’s examination she had not returned to work. Ms Riordan reported to Dr Blue that her symptoms had improved markedly and she experienced a dull ache with occasional sharp pain.
Dr Blue referred to the pelvic CT scan dated 21 June 2006 which showed no abnormality and an MRI scan dated 15 [sic-16] March 2007 which showed degenerate L5/S1 intervertebral disc, with protrusion and a right sided annular tear in the L4/5 disc.
Dr Blue concluded that:
“Based on this clinical presentation and examination, particularly her given history and her MRI of 15 [sic-16] March 2007 I would believe that the annular tear demonstrated in the MRI of 15 [sic-16] March 2007 does not relate to the incident of 9 April 2006 some 11 months earlier whilst working for Cadbury Schweppes but relates to the more recent episode of 7 March 2007 whilst working for Johnson & Johnson…The history of her spinal injuries is as outlined in the body of my report with the initial injury occurring whilst working for Cadbury Schweppes on 9 April 2006 from which she subsequently made a full recovery and then the second incident of 7 March 2007 whilst working for Johnson & Johnson resulting in the annular tear and her temporary agonising back pain to date.”
The doctor concluded that the long-term prognosis of the pre-existing mild L5/S1 disc degeneration and the recent annular tear and the L4/L5 disc were reasonably good. He certified the Worker fit for her pre injury duties with Johnson & Johnson.
DISCUSSION AND FINDINGS
Injury
Whilst Cadbury accepted liability for the injury on 9 April 2006, there remained a dispute as to the nature and extent of that injury. Also in dispute was whether Ms Riordan had sustained an injury within the meaning of the Act on 7 March 2007 during her employment with Johnson & Johnson and finally which employer bore liability for the resultant closed period of incapacity.
Ms Riordan’s solicitor submitted to the Arbitrator that following the injury on 9 April 2006, the Worker had mild persistent symptoms and attended chiropractic treatment and, in relation to 7 March 2007, referred to Dr Ashwell’s report and submitted (transcript page 3, lines 34 – 44):
“The applicant can point to another specific incident on 7 March. As such, it's, rather, a gradual onset of pain during the day in the same region in which she had previously experienced pain, and she didn't receive any pain treatment for it in any period. It wasn't heavy work that she was doing. It's not the kind of work you would expect to cause the type of injuries and symptoms that she's complained of and the doctors have found. Dr Ashwell says he considers the incident of 7 March not to be a new injury but to be a reaggravation of the original injury.”
Mr Campbell, Counsel for Cadbury submitted that following the injury on 9 April 2006 the worker returned to suitable duties with Cadbury and her employment was terminated on 28 July 2006. On 15 September 2006 she was certified fit for normal duties. Mr Campbell relied on Dr Blue’s report and submitted that there were two separate accidents and that she had recovered fully from the first injury and “the applicant had completely recovered from the first accident, and the second accident arose out of her bending down repeatedly, as stated in her statement” (transcript page 5, line 48).
Further Mr Campbell submitted at transcript page 5, lines 53-58:
“…Albeit she does describe the work not as heavy or strenuous, she did experience back pain, and she does note the time on the particular day when that back pain was experienced. Therefore, we submit that the diagnosis and the opinion of Dr Blue have to be accepted.”
The Arbitrator sought clarification from Mr Campbell about his written submissions referring to “aggravation”. Mr Campbell stated that: (transcript page 6, lines 22-25)
“That's right. There is no evidence that this is a disease of gradual onset. So any aggravation caused by the second accident was not causative to the first accident by any reason of any disease.”
Further, in a question from the Arbitrator concerning the written submission that “the cause for this reaggravation is the important question” Mr Campbell stated:
“We are simply saying there that Dr Blue refers to a pre-existing degenerative condition which may have aggravated this annular tear which caused a disc bulge” (transcript page 6, lines 47-50)
After this interchange Mr Campbell clarified his submissions to accord with Dr Blue’s evidence that the Worker had fully recovered from the injury on 9 April 2006 and the second injury (7 March 2007) resulted in the annular tear to her degenerate L5/S1 disc. Mr Campbell refrained from submitting that any inference could be drawn from the absence of reported abnormality on the CT scan in June 2006, as compared with the pathology demonstrated on the MRI scan dated 16 March 2007.
Ms Williams, on behalf of Johnson & Johnson submitted that the Worker did not sustain an injury on 7 March 2007 but rather she sustained a “relapse of pain” (transcript page 9, line 20). In support of this submission Ms Williams relied on the reports of Drs Ashwell, Devine and Mr Verco, the results of the MRI scan, and the Worker’s statement.
In relation to the evidence of Dr Blue, Ms Williams submited that his recorded history of the event of 9 April 2006 is inconsistent with that recorded by the other doctors and the description of the event in the Worker’s first statement, particularly in terms of adequately describing or interpreting the event in relation to the significant strain the Worker was under supporting the collapsing display stand.
Further, Ms Williams submits that Dr Blue provides no basis for his diagnosis or opinion that the annular tear demonstrated on the MRI did not relate to the incident on 9 April 2006. A conclusion, inconsistent with Dr Ashwell’s opinion.
Ms Williams also submits that Dr Ashwell refrained from using the word “injury” in relation to the events of 7 March 2007, initially refering to a “minor exacerbation of the lumbar disc lesion” and that his use of the word “injury” later in his report is “ entirely inconsistent with what he was saying in the body of the report” (transcript page 16, line 3). She also relied on the report of Dr Devine, the Worker’s treating general practitioner, who noted that the Worker’s symptoms, whilst decreasing in intensity, persisted since the injury on 9 April 2006 with Ms Riordan having ten chiropractic treatments spanning the period from June 2006 to 11 April 2007 (transcript page 19, line15).
Ms Williams submitted that the Arbitrator should make a finding that the pathology in Ms Riordan’s lower back was more likely to have been sustained in the 9 April 2006 injury than simply as a result of bending on 7 March 2007. What she experienced in 2007 was a gradual increase in pain and her ongoing symptoms and need for medical treatment is as a result of the 9 April 2006 injury.
The Arbitrator’s reasons are contained in the transcript of proceedings from pages 22-29. He considered the lay and medical evidence in detail. He satisfied himself that the evidence before him, both the Worker’s evidence and the evidence of Drs Ashwell and Devine and that of her treating chiropractor, Mr Verco, supported his finding that the Worker suffered a significant injury on 9 April 2006 and, also by necessary inference (although not expressly stated by the Arbitrator), that the annular tear that was disclosed on the MRI scan in 2007 was in fact more likely to have been sustained in the injury in April 2006 than to have been as a result of the activities on 7 March 2007.
The Arbitrator preferred the evidence of Ms Riordan’s treating general practitioner, Dr Devine, to that of Dr Blue. He accepted Johnson & Johnson’s submissions that the history as recorded by Dr Blue in respect of the event of 9 April 2006 failed to properly articulate the significance of the event and the physical impact it had on the Worker. The Arbitrator stated at page 26, lines 15-50:
“…Dr Blue, who I accept takes a history which is different from what appears to be contained or which I believe is contained in the applicant's statements. On page 2, the second paragraph, he takes a history that he questioned her in detail regarding the exact mechanism of injury that occurred on 9 April 2006 and he says:
With difficulty I extracted from her the fact that the display case was unbalanced as it was supported on Coca‑Cola bottles and weighed approximately 160 kilograms.
It seems a strange comment to make, given that the applicant has reported that consistently in her own statements to all the doctors, that he would find it difficult to extract that information. And then he says:
She demonstrated that it fell forwards but was still based and supported by Coca‑Cola bottles underneath it.
I accept the submission of Ms Williams that that was not the case and that the applicant's statement is clear that she took the weight and held it for some two minutes, was crying and tearful and under a great deal of stress as she was holding the weight. He goes on to say:
She states that she simply held the slanting supported case semi‑erect for approximately two minutes until various customers helped her.
I don't think that truly captures the extent of the incident which occurred and how it affected her on the day…”
Dr Blue not only recorded a different history, as noted by the Arbitrator, but he also failed to acknowledge the Worker’s complaints of persistent symptoms and ongoing medial treatment and chiropractic treatment, after the April 2006 injury.
Whilst Dr Blue notes that the Worker had ongoing physical limitations since the original injury including her inability to resume exercising at the gymnasium and that her recreational activities were confined to walking, he concludes, without adequately explaining his conclusion, or reconciling the history of symptoms and physical limitations, that the worker had “made a full recovery” from the injury sustained on 9 April 2006. Nor does Dr Blue adequately explain his opinion that the annular tear and her current symptoms are a result of the injury on 7 March 2007, when she was engaging in a light, albeit repetitive activity of bending to restock cosmetics on a low shelf when Ms Riordan developed “a severe relapse in her lower back pain and stiffness”. In my view these conclusions made by Dr Blue are best described as a bare ipse dixit (see McColl JA in South Western Area Health Service v Edmonds [2007] NSWCA 16 at [129 –131]). The opinions expressed by Dr Blue do not satisfy the requirement that evidence in the Commission be “ logical and probative” as required by Part 15 Rule 15.2 of the Workers Compensation Commission Rules 2006.
It was open to the Arbitrator to prefer the evidence referred to in paragraph [62] above to that of Dr Blue.
The Arbitrator found (transcript page 27, lines 3-11):
“So, in my view, I find as follows: that the applicant suffered a significant injury on 9 April 2006 when in the employ of the first respondent, Cadbury Schweppes. It involved a fall of an unbalanced stand weighing some 160 kilograms, which weight she took on her back for some two minutes. It caused her continual pain and suffering. She was tearful. And as a result of that she had to undergo a course of chiropractic treatment as well as medication to relieve that pain.”
The findings in relation to the injury sustained on 9 April 2006 were open to the Arbitrator on the evidence. He has dealt adequately with all the evidence that was before him and his reasoning is logical and persuasive and discloses no error of fact, law or discretion.
On appeal in relation to the injury claimed on 7 March 2007, Cadbury submits that there was “at least a temporal link” between the injury on 7 March 2007 and her employment with Johnson & Johnson sufficient to satisfy the definition of injury under section 4. Cadbury further submits that there was a casual link such to also satisfy the requirements of section 9A. It is further submitted the incapacity from 7 March 2007 was casually related to the nature of the duties performed by Ms Riordan on that day and not the injury 11 months earlier. Cadbury relies on the fact that Ms Riordan had returned to normal duties for six months prior to the injury in March 2007.
Cadbury also relies on the history that the pain after the injury on 7 March 2007 is in a slightly different site to the location of pain following the injury on 9 April 2006, namely slightly higher in her back and in her stomach. The CT scan after the 2006 injury revealed no evidence of disc pathology but the MRI scan after the 2007 injury revealed an annular tear and disc herniation.
In reply on appeal, Johnson & Johnson submits that the Arbitrator’s findings were open on the evidence.
“Injury” is defined in section 4 of the 1987 Act as follows:
“ 4 In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes:
(i)a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(c)does not include (except in the case of a worker employed in or about a mine)
a dust disease as defined by the Workers Compensation (Dust Diseases Act 1942, or an aggravation, acceleration, exacerbation or deterioration of a dust disease as so defined.”
The claim before the Arbitrator concerned two frank injuries under section 4(a) of the 1987 and 1998 Act. No claim was made that the Worker suffered a disease and/or an aggravation or exacerbation of a disease on either 9 April 2006 or 7 March 2007 under section 4(b), such as to activate the provisions of sections 15 and/or 16 of the 1987 Act.
The meaning of ‘injury’ was considered by Neilson, J in Lyons v Master Builders Association of NSW (2003) 25 NSWCCR 422 where he held:
“…the word ‘injury’ refers to both the injurious event and the pathology arising from it.”
At page 24, lines 41-48 of the transcript, the Arbitrator summarised what he considered to be his role in determining the matters before him as:
“So on that basis I think the proper role I have to play in this task is to determine whether there’s been an aggravation in the sense of something which made the applicant's back much worse, or merely an exacerbation, which was a triggering off of symptoms that were previously experienced with an earlier injury. I think we've got to be careful because the terms can become quite muddy.”
The Arbitrator referred to, and quoted from, the judgment of Neilson J in Anderson v Charles Sturt University [2002] NSWCC 62 (‘Anderson’). Mr Anderson was an electrician at the university who brought a claim for compensation relying on seven events that occurred to him during his employment from May 1992 to 1 March 2000 and as a result of the nature and conditions of his work from 1988 to 6 July 2000. His Honour Judge Neilson, however, found that Mr Anderson suffered from a constitutional degenerative disease and that he had failed to prove his case on the balance of probabilities that his incapacity for work arose from compensable work injuries. Mr Anderson failed to establish that his work duties were “acting to such an extent on the underlying degenerative condition that it was made more grave or its process was speeded up or that the condition was permanently exacerbated by the work which the applicant did from time to time in the course of his employment with the respondent” (paragraph [53]).
Whilst Anderson differs from the current matter in that Ms Riordan is not claiming injury in the form of a disease, the Arbitrator relied on the comments of his Honour Judge Neilson at paragraph [23] in which his honour said:
“23. Much of the argument in cases such as this often depends on semantics. Medical practitioners, legal practitioners and witnesses such as the applicant all use the word ‘aggravated’ without turning their minds to what the word means. Often it is used as merely referring to setting off the symptoms of an underlying condition. Such is properly referred to as an exacerbation. One often hears medical practitioners express the view that the aggravation has ceased, meaning that the symptoms triggered off by the injury have gone away. To aggravate a condition means to make it much more grave or harsh, to increase the condition itself rather than to merely trigger off symptoms. Triggering of symptoms means an exacerbation. I must look in the evidence for something which suggests that the condition itself has been made worse by the type of work that the applicant has done and must not look merely to say whether the work activities that the applicant has engaged in have triggered off symptoms. It is common ground that after any particular incident symptoms would moderate to a large extent. It is a question of whether the condition is made worse itself by the work rather than the condition being drawn to the attention of the worker when he does something which his condition no longer allows him to do as he used to do it. As Sir Victor Windeyer said in the High Court of Australia, I am concerned with genesis rather than revelation.”
In relation to the claim in respect of 7 March 2007, the Arbitrator proceeded to find as follows (transcript page 27, lines 13- 21):
“I, on all the medical evidence, adopt the summary or conclusion provided by Dr Kim Devine, which I think, in my view, most clearly approximates the situation in this case, and that is that the recent exacerbation or the recent incident on 7 March 2007 whilst in the employ of Johnson & Johnson, the second respondent, was merely an exacerbation of an old injury in that it simply triggered off the symptoms that related to her earlier significant injury in April 2006.”
The concluding passage in Dr Devine’s report dated 10 April 2007, to which the Arbitrator referred states:
“For the reason mentioned in the body of my report, I believe that the current pain is definitely attributable to the injury of 2006 whilst working for Cadbury Schweppes. I can see nothing from the history, examination, investigation and certainly nothing in Dr Blue’s report which would make me conclude that this recent exacerbation was anything other than an exacerbation of an old injury.”
Although Dr Devine does not specifically refer to the tasks that Ms Riordan was performing on 7 March 2007, he does state at page 2 of his report dated 10 April 2007:
“The current work that Ms Riordan is doing does not involve any stress on her back and further more on that date of March 2007 when the pain flared up she had not done anything either privately or at work which would explain the exacerbation.”
The work that she was performing on 7 March 2007, when she was engaged in moving very light cosmetic stock from shelf to shelf, was not onerous and the Worker’s treating doctor clearly did not believe that it caused Ms Riordan a further injury.
I accept that the Arbitrator, in adopting the language of Dr Devine and his Honour Judge Neilson in Anderson, found that he was not satisfied that the Worker suffered an injury to her back on 7 March 2007, but rather she experienced a manifestation or revelation of symptoms that had their genesis in, and were causally related to, the earlier injury on 9 April 2006 when she sustained injury to her lumbar spine resulting in an annular tear of the L4/5 disc.
I am therefore also satisfied that the Arbitrator did not err in finding that the Worker did not suffer an injury on 7 March 2007 and that the incapacity for work from that day to 17 May 2007 was causally related to the persistent symptoms from and pathology sustained in the injury on 9 April 2006. Having so found on the issue of injury I do not need to consider the other ground of appeal in relation to apportionment of liability under section 22 of the 1987 Act.
Arbitrator’s Cost Order
At the conclusion of the proceedings on 26 October 2007 having determined that liability should rest with Cadbury, the Arbitrator foreshadowed an order for costs in favour of Ms Riordan and Johnson & Johnson. Before doing so, however, the Arbitrator invited further submissions. Further written submissions were received from Cadbury. Having considered the further material the Arbitrator ordered Cadbury to pay Ms Riordan’s costs and pursuant to section 341 of the 1998 Act, the costs of Johnson & Johnson.
Cadbury submit that the Arbitrator erred in the application of his discretion under section 341 of the 1998 Act by ordering it to pay Johnson & Johnson’s costs from 5 October 2007 to 1 November 2007. There were no submissions in support of this ground of appeal.
Johnson & Johnson submit that the Arbitrator correctly applied the discretion provided by section 341(2) to determine by whom, to whom and to what extent costs are paid.
Section 341 is in these terms:
“341 Costs to be determined by Commission
(1) Costs to which this Division applies are in the discretion of the Commission.
(2) The Commission has full power to determine by whom, to whom and to what extent costs are to be paid.
(3) The Commission may order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 (or in relevant regulations under Division 4 of this Part) or on an indemnity basis.(4) The Commission may not order the payment of costs by a claimant unless the Commission is satisfied that the claim was frivolous or vexatious, fraudulent or made without proper justification.
(5) If the Commission is satisfied that a part only of a claim was frivolous or vexatious, fraudulent or made without proper justification, the Commission may order the claimant to pay the costs relating to that part of the claim.
(6) Any party to a claim may apply to the Commission for an award of costs.”
Johnson & Johnson submit the following grounds existed for the exercise of the discretion in its favour:
“(a)The Applicant was left with no option but to join Johnson & Johnson to the proceedings due to Cadbury’s denial of liability (letter from Stone & Partners to Johnson & Johnson dated 17 May 2007 attached to Application)
(b)Cadbury based their denial on the report of Dr Blue which was premised on an incorrect history (letter from Lee & Lyons to Stone & Partners dated 10 May 2007 attached to the Application).
(c)The independent medical evidence clearly supported a finding that the injury was sustained on 9 April 2006.
(d)Cadbury failed to accept liability at the telephone conference resulting in Johnson & Johnson incurring the costs of participating in an arbitration in Ballina.”
In Keevers v Electricity Commission (NSW) and another 11 NSWCCR 539 Bishop J in dealing with an application under section 18 of the Compensation Court Act 1984, which is relevantly in the same terms as section 341 of the 1998 Act said:
“The foregoing analysis suggests that the structure of the Workers Compensation legislation is such that, in cases such as the present, the discretion to award costs between respondents should be exercised sparingly (Night v FP Special Assets Pty Limited (1992) 174 CLR 178) and to do that which is ‘just’ between the parties, the issues to be weighed should be directed to the conduct of the litigation on the part of the unsuccessful respondent”
It is unfortunate that the Arbitrator failed to fully articulate the factors considered by him in the exercise of his discretion. Having said that however there clearly was a range of discretionary issues in support of the exercise of the discretion. They include the following:
1.Cadbury could have reasonably anticipated that the Worker would have joined Johnson & Johnson following their denial of liability. Although it is not a common order it could reasonably have been anticipated by Cadbury that they could be exposed to an order for costs if it were found that the Worker had not sustained an injury during the course of her employment with Johnson & Johnson.
2.At the time of the teleconference and certainly by the time of the hearing Cadbury was in possession of a powerful medical case against it. Ultimately it’s defence rested on the report of Dr Blue containing as it did important discrepancies in the history, and
3.Significant costs would have been incurred all round in having the arbitration of the matter proceed in Ballina.
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it 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, YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311). I can discern nothing from Cadbury’s written submissions to the Arbitrator or any submissions on appeal which would lead me to conclude that the exercise of the Arbitrator’s discretion on the costs issue was affected by error.
Accordingly this ground of appeal fails.
DECISION
The decision of the Arbitrator dated 1 November 2007 is confirmed.
COSTS
The Appellant to pay the First Respondent’s cost of the appeal.
No order as to costs of the Second Respondent to the appeal.
His Honour Judge Greg Keating, DCJ
President
29 February 2008
I, MELANIE CURTIN CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HONOUR JUDGE GREG KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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