Cargill Meat Processors Pty Ltd v Tuson
[2014] NSWWCCPD 37
•20 June 2014
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Cargill Meat Processors Pty Ltd v Tuson [2014] NSWWCCPD 37 | ||
| APPELLANT: | Cargill Meat Processors Pty Ltd | ||
| RESPONDENT: | Kane Tuson | ||
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | ||
| FILE NUMBER: | A1-14091/12 | ||
| ARBITRATOR: | Mr R Caddies | ||
| DATE OF ARBITRATOR’S DECISION: | 13 February 2014 | ||
| DATE OF APPEAL DECISION: | 20 June 2014 | ||
| SUBJECT MATTER OF DECISION: | Weight of evidence; assessment of expert evidence; application of principles in Paric v John Holland (Constructions) Pty Ltd [1958] HCA 58; 62 ALR 85; alleged failure to give reasons; whether need for spinal surgery resulted from accepted back injury; application of principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 | ||
| PRESIDENTIAL MEMBER: | President Judge Keating | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Walkom Lawyers | |
| Respondent: | Slater & Gordon Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s determination of 13 February 2014 is confirmed. 2. The appellant employer is to pay the respondent worker’s costs of the appeal. | ||
BACKGROUND
The appellant, Cargill Meat Processors Pty Ltd (Cargill), employed the respondent, Kane Tuson, as a meat boner at its abattoir in New South Wales.
Mr Tuson alleged that on 16 December 2010 he was pulling apart strip loins on the boning stand when he felt a sudden twinge and a burning sensation in his lower back.
On 6 April 2011, Mr Tuson resigned from Cargill in an attempt to try and find work that was less stressful for his back condition.
Between 6 June 2011 and 1 July 2011, Mr Tuson was employed as a general cattle hand with Iron Bark Herefords at Berrima.
From 13 September 2011 to 27 October 2011, Mr Tuson was employed, as a farm hand, by Richard Wright of “Woodvale”, a cotton and wheat farm.
It is not in dispute that Mr Tuson suffered from a disc protrusion at L5/S1 which extended into his spinal canal which required immediate surgery.
Cargill’s insurer, Allianz Australia Workers Compensation (NSW) Ltd (Allianz), refused to meet the costs of the proposed surgery. Contrary to its obligations under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), Allianz failed to provide Mr Tuson with a notice setting out its reasons for disputing liability. It did however write to Mr Tuson’s solicitor on 31 May 2012, stating, among other things, that:
“Mr Kane Tuson was issued with a final pre-injury certificate on 6 April 2011 furthermore; Treating Doctor Diebold has advised that Tey’s (Australia) [Cargill] is not responsible for any ongoing aggravation of the condition of Mr Tuson’s back.”
On 8 November 2012, Mr Tuson lodged an Application to Resolve a Dispute (the Application) in the Commission. He sought an unspecified sum in respect of the “cost of proposed surgery”. The proposed surgery was described as “L5/S1 Laminectomy Discectomy, Decompression and Rhizalysis [sic, Rhizolysis] surgery and rehabilitation associated with such procedures. Also, costs outstanding in total, $250”.
On 4 December 2012, by way of an Application to Admit Late Documents, Cargill sought to file a Reply to the Application. It sought to rely on the following additional grounds:
“1. The Applicant’s need for surgery is not as a result of an injury arising out of or in the course of his employment with the Respondent.
2. Alternatively, the Applicant’s injury arises from the aggravation, acceleration, exacerbation or deterioration of a disease of gradual process and the Respondent was not the last employer to employ the Applicant in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
On 22 June 2013, Mr Tuson underwent an L5/S1 Laminectomy Discectomy, Decompression and Rhizolysis operation performed by Dr John Christie, a neurosurgeon. Therefore, the issue for determination by the Arbitrator involved an indemnity claim for reimbursement of the cost of the surgery, not a claim for proposed treatment as initially pleaded.
Mr Tuson’s solicitors lodged an Application to Admit Late Documents on 4 February 2014, attaching, among other things, an Amended Application to Resolve a Dispute (the amended Application). The amended Application pleaded injury due to repetitive work as a boner from 5 May 2010 to 6 April 2011. However, the application to rely on the amended Application was abandoned and the matter proceeded as originally pleaded.
On 13 February 2014, the matter was listed for an arbitration hearing before Arbitrator Caddies in Tamworth. The Arbitrator found in favour of Mr Tuson. He found that the need for the treatment, including spinal surgery, which by the time of the hearing had already been performed, resulted from the injury on 16 December 2010 in the course of Mr Tuson’s employment with Cargill. The Arbitrator ordered Cargill to pay the treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
On 13 February 2014, the Commission issued a Certificate of Determination in which the following orders were made:
“1. Amend the name of the respondent wherever appearing from ‘Cargill Beef Australia’ to ‘Cargill Meat Processors Pty Ltd’.
2. That the applicant’s need for treatment (including spinal surgery already performed) results from injury on 16 December 2010 in the course of his employment with the respondent to which injury his employment was a substantial contributing factor.
3. That the respondent pay the applicant’s expenses under section 60 of the Workers Compensation Act 1987 (general order).
4. Liberty to apply in relation to the section 60 expenses in the event of disagreement.
5. That the respondent pay the applicant’s costs as agreed or assessed.
6. Having regard to the significant and unusual issues of fact, law and medical causation and incapacity raised (including a complicated history), I certify the matter is complex and order that the costs payable, in respect of both parties, are to be subject to an uplift of 25 per cent.”
Cargill has appealed the Arbitrator’s determination.
Preliminary Matters
There is no dispute that the threshold requirements as to quantum and time as found in the provisions of sub-ss 352(3) and 352(4) of the 1998 Act have been met.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THE EVIDENCE
Kane Tuson
Mr Tuson is 25 years of age. After leaving school he completed a TAFE qualification as an abattoir boner. Since leaving school his employment has always been in the meat industry.
After leaving school in approximately 2005 Mr Tuson obtained work with Tamworth Lamb Abattoirs for a short period before commencing work in a butcher shop as an apprentice butcher. He has completed his TAFE qualifications to become a butcher, subject to completing one year of practical employment.
After completing his TAFE course as an apprentice butcher he obtained work with Cargill, as a boner, at the abattoir in Tamworth.
On 16 December 2010, Mr Tuson, was pulling apart strip loins on a boning stand. At about 10.00 pm he felt a sudden twinge and burning pain in his lower back. Unsure as to what had happened to his back, he completed his shift, but after the shift he reported the incident to his manager, Les Cain. He also reported the injury “to my HR person as well” and completed an injury report form.
In his statement dated 27 October 2012, Mr Tuson (at [23]) states:
“I am unsure whether I was provided with suitable duties straight away, but I remember commencing suitable duties shortly after my injury. I was then being provided with a Workers Compensation benefits through my employer and I received these up until the day I quit the employment with Cargill.”
Mr Tuson stated that after returning to work at Cargill he was “hassled by the employer every day” (at [30]). He said he was hassled to return to full duties and was subject to comments, such as, that he was “putting it on” ([31]) and was lying about the extent of his injuries.
Eventually, Mr Tuson says, the job became too much for him with the pressure and the stress that he was being placed under by his employer such that he decided to leave to find employment that would be easier for him.
Mr Tuson attended his general practitioner and asked him to certify him fit for pre-injury duties ([33]) “so that I was not officially carrying a Workers Compensation claim into a new job. This is because employers in the Tamworth area will generally not hire people if they are currently on a Workers Compensation claim”.
Mr Tuson added (at [34]):
“The pain was still there and the injury was still present, but Dr Diebold [Mr Tuson’s general practitioner] had advised me that there was nothing he could do and the injury was permanent, so I decided to get a certificate which certified me fit for pre-injury duties and try to return to the workforce in some capacity.”
Mr Tuson said that it was only after returning to the workforce and attempting various jobs that he found that his injury and his medical condition was heavily limiting his ability to obtain and retain employment. He sought further advice from his general practitioner but was told that there was nothing that could be done.
On or about 15 February 2012, Mr Tuson saw a solicitor, David Allen of Slater & Gordon Lawyers. Mr Allen recommended that Mr Tuson seek referral for a specialist opinion. Based on that advice Mr Tuson saw Dr Galindo, general practitioner, at the Peel Health Care Centre, where Dr Diebold also practices. Dr Galindo arranged for an MRI scan to be undertaken and then referred Mr Tuson to Dr Christie who subsequently recommended a laminectomy and discectomy.
Mr Tuson provided a further signed statement on 28 December 2013. Mr Tuson was initially employed by Cargill on 9 July 2008. He left that employment on 27 November 2009 “to try and find work that was less stress on my back” ([25]). On 5 May 2010 he returned to work at Cargill.
In respect of his employment after resigning from Cargill for the second time, Mr Tuson said that he commenced employment as a general cattle hand with Ironbark Herefords at Berrima on 6 June 2011. He worked there until 1 July 2011. He said that he had to resign because he couldn’t handle the work due to his back injury. He added that whilst he worked there he tried to mask the pain in order to keep his job. He was concerned that if his employer, Adrian Spencer, knew about his back injury he would terminate his employment. Mr Tuson denied suffering any injury whilst working for Ironbark Herefords.
On 13 September 2011, Mr Tuson commenced work for Mr Richard Wright on a property known as “Woodvale”, a cotton and wheat farm at Wee Waa in New South Wales. His duties involved irrigation work and driving a tractor. In his supplementary statement dated 28 December 2013, Mr Tuson states (at [10]):
“In the entire time at the cotton farm in Wee Waa I did not sustain an injury to my lower back. It was more the fact that the pain that was present as a result of my injury in December 2010 was still impacting on my work capacity and my back was always sore, whether I was working or not.”
In April 2012 Mr Tuson commenced working for Repco as a spare parts analyst. He states (at [11]–[12]):
“I do state that the lifting of boxes was causing considerable pain in my back. I wish to clarify that the pain I felt in my back was the same pain I felt after my injury at Cargill and because lifting boxes caused pain in my back, I would avoid lifting them.
At this stage the work at Repco was ok, so long as I didn’t have to lift any boxes. I will say that I did not suffer any injury at Repco, and the pain which I was suffering from was the same pain I sustained in the accident which is the subject of this claim.”
In terms of his history of back pain and treatment, Mr Tuson states (at [13]):
“On or around 20 July 2007 I attended Dr Daniel Diebold at Peel Health Care at 103 Peel St, Tamworth, NSW. I presented with some lower back pain which would make me stiff in the mornings. Dr Diebold prescribed pain killers and after a week or two on this medication the pain subsided and I got back to my pre-injury duties.”
Mr Tuson added (at [14]–[15]):
“On or around 9 November 2010 I consulted Dr Olivia Magno of the same surgery in order to get medical clearance to go back to work after having some days off with a sore hand.
I did say to Dr Magno that my back gets stiff, however this complaint was more to do with how my back feels after a day of boning, rather than how my back felt after the incident where I suffered a disc prolapse on 16 December 2012 [sic].”
On 4 January 2011, Mr Tuson attended Dr Tim Bosse, general practitioner, at the Peel Health Care Centre. At that time he was finding it difficult to perform his normal duties by reason of the back injury on 16 December 2010. Mr Tuson states that the entry in Dr Bosse’s notes indicating that he suffered an injury on 31 December 2010 is not correct. The date of the injury is 16 December 2010.
At [18]–[20] of his statement Mr Tuson states:
“I returned to Peel Health Care on or around 7 January 2011 and spoke with my usual GP Dr Daniel Diebold. Dr Diebold noted that I had been working for Cargill Meat Processors for about 4 years and I had had low back pain for around 3½ of those four years, and now my boning duties continue to aggravate the prolapsed disc problem I sustained on 16 December 2010
I then returned to my GP on or around 9 March 2011 and again complained of low back pain. All my complaints to my treatment providers since 16 December 2010 have all been in relation to the pain I was feeling in my lower back from the frank incident on 16 December 2010. As the insurer had denied liability for treatment for a very long time, it was only after the MRI scan had been completed that the cause of all this pain was revealed. There were no other frank injuries or any other trauma since 16 December 2010 where I have sustained an injury to my back. It has merely been continuing pain and slight exacerbation of the existing pain that I have complained about.
As Julie Heinecke points out in her statement on 10 April 2013, I had not made any further complaint between 17 December 2010 and 4 January 2011 of any back injury. This is because the back injury I am suffering from occurred on 16 December 2010 while working for Cargill and ever since then I have had terrible back pain from the prolapsed disc which caused me further sciatic pain radiating down into my buttock.”
On 22 June 2013 Mr Tuson underwent a laminectomy and discectomy at the John Hunter hospital in Newcastle. The surgery was performed by Dr Christie. The surgery was largely successful and Mr Tuson expects to return to work.
Other evidence
On 20 July 2007, Mr Tuson attended Dr Diebold complaining of a two week history of low back pain radiating down the back of the leg to the knee.
On 9 November 2010, Mr Tuson saw Dr Olivia Magno, general practitioner, at the Peel Health Care Centre. Mr Tuson reported having been involved in a fight on Melbourne Cup day and hurting his knuckles. He was struggling to work and was sent home. The clinical notes also record:
“also back gets pretty stiff
has had for awhile [sic]
never wen tto [sic] physio”Mr Tuson was given a medical certificate for one day off work and told to return if his back was no better.
According to Ms Julie Heinecke at [20] of her statement of 10 April 2013, at 10.30 pm on 16 December 2010, Mr Tuson reported injuring his back to Mr Potts at the Cargill medical centre. The information is apparently contained in a “First Report Form” which was forwarded to Cargill’s insurer, Allianz. The First Report Form is not in evidence.
On 17 December 2010, Mr Tuson reported to Ms Heinecke at Cargill’s medical centre. The notes record:
“1430hrs C/O sore Back-Nurofen*2
2130hrs C/O sore Back-Panadol*2.”On 4 January 2011, Mr Tuson attended Dr Tim Bosse, general practitioner, at the Peel Health Care Centre. Dr Bosse’s notes indicate:
“Hurt lower back twisting and lifting at work 31/12/10 [sic]
has seen Karyn Blackman, Physio, at Total Care Physio today
Lower back taped
Advised to have Work cover.
O.e [on examination] reflexes, power and sensitivity legs nad.
pain and muscular spasm L SIJ and paravertebral lumbar muscles
Limited ROM lower back”
Dr Bosse issued a Workcover medical certificate certifying Mr Tuson unfit for work from 4 January 2011 to 7 January 2011.
Also on 4 January 2011 Mr Tuson was seen by Karyn Blackman, physiotherapist. In a report dated 7 January 2011 to Dr Bosse, Ms Blackman said:
“…Mr Tuson attended Total Care Physiotherapy for an initial assessment on 4 January 2011. He reported a one year history of intermittent lower back pain. Kane was unable to identify an incident of onset, but he related the pain to his work at the abattoir. Kane mentioned that sometimes the pain comes on when he had ‘cooled down’ following a shift at work.
At his assessment Mr Tuson reported intense left low back pain following his shift on 31 December 2010. This prompted him to seek physiotherapy treatment.”
Ms Blackman recorded her examination findings and stated that she encouraged Mr Tuson to continue periodic extension and lying exercises and avoid aggravating activities.
Mr Tuson reported to Ms Heinecke at the Cargill medical centre also on 4 January 2011. Her notes state:
“Ee [employee] presented to the M/C with an unfit Workers Compensation certificate. T. Potts, JH to contact Ee in the morning regarding certificate
0900hrs Ee presented to the m/centre, Ee stated that he was going into the army and he didn’t really want to put a WC claim in as it would be on his record. Ee opted not to put the claim in. Ee is to see Dr Diebold on Friday 7th to be reviewed.
Ee will be paid special leave for 4-7/1/11.”
On 7 January 2011, Mr Tuson was seen again by Dr Diebold. Dr Diebold issued a further WorkCover medical certificate certifying Mr Tuson fit for suitable duties from 7 January 2011 to 12 January 2011. He certified a lifting limit of 5 kgs. His notes of that day state:
“4 yrs at CMP
boner
denies any other physical activity
claims 3.5yrs (L) low back pain
has continued to give him trouble, but just tolerated it
original presentation not work-related
work
now aggravating factor”
Under the heading “reason for visit” Dr Diebold stated “chronic pain; low back; acute”.
On 10 January 2011, Mr Tuson again visited the Cargill medical centre and saw Ms Heinecke. The note of that visit states: “2000hrs c/o sore back-nurofen*2”.
On 11 January 2011, Mr Tuson again reported to Ms Heinecke. She noted: “1500 hrs C/O sore back-Nurofen*2”.
On 13 January 2011, Mr Tuson saw Mr Potts at Cargill’s medical centre. The notes record Mr Tuson’s attendance at physiotherapy on 4 January 2011.
On 18 January 2011, Mr Tuson again saw Mr Potts at Cargill’s medical centre. The notes for this visit state:
“Kane presented to the M/C before start of shift to receive his suitable duties slip. I asked Kane if he was fine with what had been organised. He said he would give it a go
Kane was back at the M/C at 4pm stating he was no longer wishing to do Boning that he was quite happy to go back a grade (grade4) and just do Tri Tips, because he wants his back right before he joins the Army. Spoke to Brian Wright he was going to organise it.”
On 20 January 2011, the medical centre notes record Mr Tuson’s attendance at physiotherapy and note Mr Tuson said: “he was still a bit sore”.
On 3 February 2011, the medical centre notes state:
“Employee presented to M/C after physio, saying the physio said he was right to go back boning
He is doing 1hr on 1hr off.”On 7 March 2011, Mr Tuson attended Ms Heinecke at the Cargill medical centre. Her notes state:
“Ee [employee] presented to M/C stating his back is ‘no good’ Ee states he now doesn’t ride his motorbike or go to the gym anymore because of his back, ee states that the physio told him he is to stand up straight and he is currently doing ribs which causes him to bend forward.
JH spoke to Bwright, BW feels Ee doesn’t want to continue to bone however wants to continue being paid a grade 5 position, BW states he will have a chat to Ee regarding if he wants to downgrade from being a boner to a slicer we would have to discuss a grade 4 position.”
On 9 March 2011, Ms Heinecke recorded in the case notes:
“Ee [employee] rang M/C stating he is not coming in today because his back is really bad, JH informed EE that we can provide him with light duties, ee refused duties stating he just needs to lay down.
JH stated to Ee that we will have to get him into see a Dr, Ee stated that he rang Dr Diebolds [sic] room and Dr D told Ee to come out to the plant tomorrow to see him.”
Also on 9 March 2011, Dr Diebold issued a Workcover progress certificate, certifying Mr Tuson fit for suitable duties from 10 March 2011 to 24 March 2011, working four hours per day with limitations on lifting up to 5 kgs and sitting and standing up to five minutes at a time. He noted complaints of left lower back and hip pain. He also noted “tender (L) piriformis muscle”. He recorded the reason for the visit as “Left Piriformis syndrome”.
The Cargill medical centre case notes for 10 March 2011 record:
“1930 hrs – Ee presented to the HC at the end of his 4hrs shift. States that he was on rolling string on roasts as an extra for the table, was able to leave the table when required, was able to sit and stand at 5min intervals.
E’e states that he will present daily to report how injury recovery is progressing.”
On 11 March 2011, Mr Tuson attended Dr Diebold. Dr Diebold’s notes of that consultation state, “(L) low back/hip pain. Any activity, he if, [sic] sport aggravating. Sitting okay, but hurts to get going. Seeing physio Rx four months. Seems to improve but now much worse”. Dr Diebold certified Mr Tuson fit for four hours per day, five days per week on light duties with restrictions of lifting over 5 kgs.
The Cargill medical centre case notes for 11 March 2011 state, “JH contacted W/cover today to explain the situation, JH to send John Ringland information regarding this case”.
The Cargill medical centre case notes for 14 March 2011 state:
“Ee [employee] presented to the HC at the end of his shift and stated the following:
1. That his (R) side back is feeling tight, occurred as he was getting out of bed this am.
2. That he is starting his shift at 1930 hrs as of 15/3/11 as requested by his supervisor.
3. Physio appoint 11.30 am 15/3/11.”
The Cargill medical centre case notes for 15 March 2011 state:
“Appointments made
Presented to Medical Centre after attending Physio had strapping to lower back. Appointment with Simon Tydd Physiotherapy:
25th March 12.00 pm
28th March 11.30 am
1st April 11.30 am
4th April 11.30 am
8th April 11.30 am.”
Mr Tuson was seen again by Dr Diebold on 23 March 2011. He again noted acute back pain. The Cargill medical centre case notes for 29 March 2011 state:
“Ee [employee] requested Wendy Thompson to get a copy of all his WC certificates, Ee given certificates as requested. 28/03/2011 Light Duties 2.5 kgs lifting restrictions, no bending, no twisting.”
Dr Diebold issued a Workcover progress medical certificate on 23 March 2011. He diagnosed “(L) piriformis syndrome” certifying Mr Tuson fit for suitable duties from 23 March 2011 to 6 April 2011, working four hours per day with a lifting limitation of 5 kgs and limitations on sitting and walking to ten minutes.
On 6 April 2011, Dr Diebold issued a final certificate certifying Mr Tuson fit to resume normal duties. His notes indicate “leaving work. Minimal pain now. Physio happy”. On the same day Mr Tuson resigned from Cargill.
The Cargill medical centre case notes for 6 April 2011 state:
“Ee presented a final Workers Comp certificate, 8 hrs per day, Ee then stated he is resigning and moving to Birdsville to work on a farm.
Ee has gone from working 4hrs per day with a lifting restriction of 2.5 kgs to returning to a full 8hrs per day boning.”
On 6 June 2011, Mr Tuson commenced work as a general cattle hand with Ironbark Herefords at Berrima. The principal of that company, Adrian Spencer, provided a signed statement of evidence dated 27 March 2013. Mr Spencer stated that the work involved cleaning out bull stalls and feeding bulls. He was also required to drive a small lawn mower tractor and shovel materials into a bucket. He said (at [9]):
“It wasn’t gut busting work, just general labour. He didn’t have much experience in this type of work. He didn’t complain to me that the work was excessive. He didn’t mentioned any previous injury or complain that he received an injury whilst here.”
Mr Spencer added (at [10]) “I don’t think he did a lot of physical hard work whilst here. He had good equipment which takes the back breaking work out of what is required”.
Mr Spencer stated Mr Tuson showed no sign of injury whilst he was employed by him and had not sustained any injury during the course of his employment. He left the employment of his own accord due to a disagreement with a supervisor. He left Ironbark on 1 July 2011.
On 13 September 2011 Mr Tuson commenced work for a Mr Richard Wright on a property known as “Woodvale” at Merah North. Mr Wright provided a signed statement of evidence dated 5 May 2013. He said (at [9]) “I believe it was at the initial discussion about the job that he told me that he had a back injury but it didn’t stop him from performing normal duties…”.
Mr Wright added (at [10]):
“I informed [Mr Tuson] that the work involved tracker [sic] driving and irrigating. The irrigating involved shovelling dirt, starting and stopping syphons which are lengths of poly pipe from the head ditch to the cotton field. There would be five to six people doing it. Each person would do between 300 and 600 most days. It meant you had to bend down and pick up the pipe. You are on the go all the time bending down. You would do a couple of hundred in the morning and then come back 12 hours later and lift them up with a metal hook to save bending. To stop them continuing to irrigate the field, you are lifting the end of the poly pipe out of the water and it stops irrigating. You then put the other poly pipes that weren’t done in the morning into the water to irrigate the field. To get the flow of water feeding through the pipe it is necessary to hold one hand over one end of the pipe and push the other end back and forth into the water in the ditch. You do this a number of times to get the flow of water going.”
Mr Wright stated that Mr Tuson last worked for him on 27 October 2011. He left to have a long weekend at home in Tamworth but did not return.
Mr Tuson had told Mr Wright that he did have a back problem, as a result of which Mr Wright watched him perform his duties but said that he didn’t seem to be hindered by any problem and he did not make mention that his duties caused any problem. Mr Wright also described the tractor driving duties performed by Mr Tuson stating ([16]) “the tractors are reasonably modern and are designed to maximise driver comfort which maximises your productivity”.
Mr Wright stated that Mr Tuson never complained about his duties and seemed capable of performing them to his satisfaction. Mr Tuson ceased employment at “Woodvale” on 27 October 2011.
On 27 January 2012, Mr Tuson attended Dr Diebold. The doctor’s notes record:
“x4 for jobs since 04/11
farming, tractor driving, building, landscaping
back sore even when not working
(L) lower back pain persists
(R) sided recently
trouble sleeping”Dr Diebold’s examination noted tenderness in the lower lumbar region and “piriformis”. Dr Diebold issued a Workcover progress certificate certifying Mr Tuson fit for suitable duties from 27 January 2012 to 27 April 2012. The doctor restricted Mr Tuson to eight hours per day, five days per week, limiting standing and walking to 15 minutes with no repetitive bending or lifting.
Mr Tuson saw Dr Diebold again on 2 March 2012. He recorded “pain radiating to buttock”. He referred Mr Tuson for an MRI of the lumbar spine and the sacroiliac joint. Dr Diebold issued a Workcover progress certificate certifying Mr Tuson fit for suitable duties from 2 March 2012 to 2 May 2012 and restricted him to lifting no more than 5 kgs and “lifting up to 15 mins”. He certified no repetitive lifting and bending.
In April 2012 Mr Tuson commenced work with Repco as a spare parts analyst.
On 11 April 2012, Mr Tuson saw Dr Galindo at the Peel Street Medical Centre. The doctor noted pain radiating to the left leg and the sensation of pins and needles. He recorded a pain level of 7/10 at times.
On 12 April 2012, Mr Tuson submitted to an MRI of the lumbar spine and sacroiliac joints. In a report dated 19 April 2012, Dr Pattison reported the findings and concluded:
“There is degeneration of the L5/S1 disc with a large central to left paracentral protrusion which extends 50% of the way back into the canal, distorting the thecal sac and displacing the left S1 nerve root within the canal. Associated bony degenerative changes are causing mild left foraminal compromise but epidural fat remains around the L5 nerve root within the foramen.
No other abnormality is identified.”
On 18 April 2012, Mr Tuson again reported to Dr Galindo feeling pins and needles in the left leg and continuing back pain.
On 26 April 2012 following a consultation with Mr Tuson, Dr Diebold recorded:
“Pain down L leg. Pins and needles helped by panadeine forte and tramadol. Works at Repco in Bridge St. OK. No lifting. Needs improved pain relief. Using nothing through day so he can work.”
Dr Diebold issued a Workcover progress certificate certifying Mr Tuson fit for suitable duties from 26 April 2012 to 26 June 2012 with limitations on lifting up to 5 kgs and no repetitive bending or lifting.
On 10 May 2012, after noting the results of the MRI scan, Dr Galindo referred Mr Tuson to Dr Christie. On the same day Dr Galindo wrote a referral letter to Dr Christie. Dr Galindo wrote:
“Thank you for seeing Kane Tuson for an opinion and management.
Kane has had ongoing pain in the lower back lately complicated with radiation to L leg, this appeared as a work related injury when he was working at the abattoirs.
He is now delivering parts, but still the pain is unbearable, mainly left gluteal region with pin/needles down to L leg.
Has had MRI showing degenerative disk [sic] at L5-S1 with large central to left paracentral protrusion extending 50% of the way back into the canal.”
On 18 July 2012, Dr Christie prepared a report to Dr Galindo. Dr Christie reported the following history:
“He gives a history of 4 years duration of low back pain. The symptoms originally came on when he was working in the abattoirs and I think it is reasonable to relate them to that. The symptoms previously were confined to the lower back but over the last 6 months he has had persisting pain radiating through the left buttock and down the left leg with associated paraesthesia in the left foot. The symptoms are not improving at all and they certainly seem to be restricting his activities. The pain is aggravated by coughing and sneezing.”
After reviewing the MRI report and noting that Mr Tuson had been suffering from leg pain for six months prior to Dr Christie’s assessment, Dr Christie recommended surgery to decompress the left S1 nerve root and remove the protruding disc material.
On 23 October 2012, Mr Tuson was assessed by Dr Hopcroft, an orthopaedic surgeon, at the request of his solicitors. In a report dated the same day, Dr Hopcroft recorded the following history:
“On 16 December 2010 while undertaking boning activities, he was pulling apart a strip loin and developed sudden severe low back pain. He reported it to his immediate supervisor and kept on working for one hour but then realising his back was worsening and with pain radiating into his left leg reported the matter to HR and was redirected to light duties.
He was forced to seek medical advice when his pain worsened and his left sided sciatic symptoms, which included paraesthesia and numbness radiating down to his foot, gradually got worse.”
Dr Hopcroft reported that Mr Tuson kept working with the help of a lumbosacral belt which he purchased to help control his back and sciatic symptoms. Realising he would have to get back to full duties if his future employment career was not to be jeopardised, he requested and obtained a certificate from Dr Diebold certifying him fit to return to work. After obtaining that certificate and returning to work Mr Tuson resigned believing it would be easier for him to obtain work in the farming industry.
Dr Hopcroft referred in detail to the MRI findings and Dr Diebold’s reluctance to refer Mr Tuson for specialist advice but noted after a change of general practitioner he had recently been referred to Dr Christie for treatment. Dr Hopcroft, after noting his examination findings, agreed that Mr Tuson required immediate surgery. Dr Hopcroft said:
“This patient has a major L5/S1 intervertebral disc protrusion with left lateralisation dating from the work related injury from 10 [sic] December 2010 and without any further trauma thereafter which could be considered to have exacerbated the problem. The patient is at extreme risk of permanent nerve root damage if his surgical procedure of laminectomy discectomy surgery at L5/S1 is not expedited quickly.”
On 11 February 2013, Mr Tuson was assessed by Dr David Millons, at the request of Cargill’s solicitors. Dr Millons prepared a report, dated 12 February 2013, where he recorded the following history:
“Mr Tuson thinks he may have had some backache in the past but there was one episode that he recalled at the abattoir when he was pulling apart a strip loin when he became aware of some pain in his low back.”
Dr Millons noted the entries in Dr Diebold’s notes of 20 July 2007, 9 November 2010, 4 January 2011, 13 January 2011 and 6 April 2011.
Dr Millons noted:
“Whenever it was, and you refer to a date of 16 December 2010, Mr Tuson states that he was pulling apart a strip loin when he felt what he described as a jarring sensation in his lower back. He reported the incident and kept working. He had about an hour and a half to go to the end of his shift.
There was then a long weekend that followed. He rested up. He returned to work at the end of that time. He was aware of pain, particularly in the left buttock region which seemed to be radiating from the left lower limb to the ankle. He states he was on light duties doing paperwork, not doing a low of walking, bending or twisting. He did that for some weeks.” (emphasis included in original)
Dr Millons then refers to the work undertaken by Mr Tuson as a farmhand and as a tractor driver on the property at Wee Waa. Dr Millons commented on his examination findings and review of the radiology. Dr Millons agreed that Mr Tuson suffered from a prolapsed L5/S1 disc and needed immediate surgery.
Dr Millons said:
“Mr Tuson’s underlying problem is probably constitutionally based but there were aggravations occurring along the way and the incident with the loin stripping (in December 2010) does appear to have been a substantial aggravation and a substantial contributing factor in his condition.”
Dr Millons dismissed Mr Tuson’s employment after leaving Cargill as a substantial contributing factor to his condition. He said:
“That work may well have caused some aggravations of the underlying changes. He did not work in any of the positions for long, finding difficulty coping with them. Those positions may have served to indicate there was a problem in train that really needed addressing and that problem has been in train since possibly December 2010.”
On 11 July 2013, Dr Millons prepared a second report. He made extensive reference to the entries in Dr Diebold’s clinical notes and the statements of Mr Spencer and Mr Wright. Dr Millons concluded that Mr Tuson’s problem was constitutionally based, and whilst there may have been aggravations of the underlying degenerative change at L4/S1 along the way, brought about by the nature and conditions of his employment and the normal activities of daily living, the incident of December 2010 was one such aggravation and probably not of itself substantial.
Dr Millons reasoned that Mr Tuson’s doctors’ records in January 2011 noted three and a half years of left low back pain which would therefore have begun in about 2008. He stated that there did not appear to have been any episode of trauma to set those symptoms off. This is consistent with degenerative changes in the back which wax and wane over time. He noted that the medical records in respect of the December 2010 injury did not indicate left lower limb pain. The symptoms in the left leg were first recorded on 11 April 2012, some twelve months after Mr Tuson had left the abattoir.
Dr Millons rejected the suggestion that Mr Tuson’s employment since 2011 had been a substantial contributing factor to his condition. That work, he said, may have caused some day to day aggravation but it would have been minimal. He considered it no more substantial than the work at the abattoir in terms of aggravating his condition.
THE ARBITRATOR’S REASONS
The Arbitrator identified that the issue before him was whether Mr Tuson’s condition and his need for medical treatment resulted from the accepted injury on 16 December 2010.
The Arbitrator noted that Mr Tuson attended Cargill’s medical centre at 10.30 pm on 16 December 2010 and again on 17 December 2010. Mr Tuson was provided with pain relieving medication.
Mr Tuson did not seek further medical treatment from the Peel Health Care Centre in relation to his back until 4 January 2011 when he saw Dr Tim Bosse. The Arbitrator recorded Dr Bosse’s findings which are reproduced at [41] of this decision. Dr Bosse recorded an incorrect date of injury (31 December 2010) which the parties now accept was an error.
Mr Tuson has been a patient of the Peel Health Care Centre since 2003. The Arbitrator noted an entry by Dr Diebold in the centre’s records on 20 July 2007, which referred to a two week history of low back pain not caused by any particular precipitating event. The doctor’s diagnosis was recorded as “pain; low back; and acute”.
The Arbitrator made reference to Mr Tuson’s various visits to the Cargill medical centre (T3.19). He found that it was clear that Mr Tuson was concerned about his prospects of employment if he had a workers’ compensation history. He noted that Mr Tuson was placed on light duties from about 4 January 2011 and continued on light duties for about six weeks. He was also having physiotherapy from Ms Blackman’s practice.
The Arbitrator noted that Dr Diebold had obtained a history of back pain and in various reports commented about a tender left “piriformis muscle” which is also referred to as “piriformis syndrome”. That condition relates to the buttocks region which was consistent with Mr Tuson’s consistent complaints about pain in the buttocks, left buttock and pain and soreness in that region from about the time of the injury on 16 December 2010. In addition to being Mr Tuson’s general practitioner, Dr Diebold is also the general medical attendant at Cargill.
Mr Tuson was concerned to leave his employment with Cargill with a clear medical certificate as to his condition. A final medical certificate was issued by Dr Diebold on 6 April 2011, certifying Mr Tuson fit for his pre-injury duties. However, a progress medical certificate issued by Dr Diebold on 23 March 2011, restricted Mr Tuson’s capacity for work to four hours per day five days per week with a lifting limit of 5 kgs and restrictions on sitting and walking of up to 10 minutes at a time.
At the time the certificate, dated 6 April 2011, was issued, having regard to the consistency of complaints in the medical centre records, the Arbitrator found that Mr Tuson was continuing to suffer from pain in the lower back and in the left buttock, and that the certificate had probably been issued at Mr Tuson’s request.
In reference to Mr Tuson’s post injury employment, the Arbitrator found that the work with Mr Spencer did not seem to be particularly arduous. He found that the work with Mr Wright (erroneously referred to as Mr Spencer at T4.31) was arduous to a degree because it involved Mr Tuson stopping on numerous occasions to connect irrigation pipes and to disconnect them requiring a significant amount of bending. The Arbitrator found that this work caused a manifestation of pain of the type of a heightened level, but it reverted from that level back to the pain level previously suffered. The Arbitrator noted that Mr Tuson only lasted for five weeks in the employ of Mr Wright and for less than a month in the employ of Mr Spencer.
Dr Millons rightly commented about Mr Tuson “that nothing appeared to be specific as to what, occurred in April 2012 when the back pain became worse”. The Arbitrator noted Mr Tuson’s complaints on 2 March 2012 of pain radiating to the buttock and the recommendation for an MRI to be undertaken. He also noted Mr Tuson’s complaints of pins and needles on 18 April and 26 April 2012.
There was nothing about Mr Tuson’s work with Repco that would have contributed to the condition.
The Arbitrator noted Dr Christie’s view, in his report of 18 July 2012, that having regard to the history of leg pain for about six months, without relief, and the MRI findings, that surgery was a reasonable option.
The Arbitrator held that his decision turned on a question of whether he could accept that Mr Tuson suffered a continuity of symptoms from the incident on 16 December 2010, including the buttock pain (piriformis syndrome) and whether it was reasonable to accept that because of the continuity there was an unbroken causal chain resulting in the surgery the subject of this dispute.
At T6.18 the Arbitrator held:
“It is unfortunate that there are various references to three and a half years of pain because that is not borne out by the medical file of the general practitioners, yet the applicant, it seems, the applicant was marked not to be re-employed by reason of this history. And in view of the comments by the general practitioner to the Health Centre I believe that this has been a misunderstanding as to the nature of the history that the general practitioner referred to because it’s quite clear that the incident in about 2008 [sic, 2007], a history of two weeks, was in fact quite short lived.”
The Arbitrator’s reference to the medical records is a reference to the history noted in Dr Diebold’s notes of 7 January 2011.
The Arbitrator noted that Dr Millons initially supported Mr Tuson’s claim. He added (at T7.2):
“On careful review of all of the circumstances, which in fairness I believe Dr Millons endeavoured to also do, I am of the view that the causal chain and the continuity of symptoms from 16 December 2010 support the need for, support the medical and related treatment as resulting from that injury. And I so find.”
ISSUES ON APPEAL
Cargill submits that the Arbitrator erred in:
(a) finding a causal nexus between the injury of 16 December 2010 and the need for surgery, and
(b) failing to give adequate reasons for his decision.
SUBMISSIONS AND DISCUSSION
It is not disputed that Mr Tuson suffered an injury to his back on 16 December 2010 in the circumstances he described. This follows from the following exchange which occurred after Mr Judd submitted that the Reply had not denied injury (at T3.2):
“ARBITRATOR: No, that’s been admitted by the, by Mr Walkom, I think.
MR JUDD: All right. So there’s no denial of injury. Is that the case, Mr Walkom?
MR WALKOM: There’s no denial that injury occurred on 16 December.”
At T5.18 the concession was again confirmed:
“ARBITRATOR: Well, so what’s our position? This is what I want to clarify. Do you concede that on 16 December 2010, the worker suffered an injury within the course of his employment?
MR WALKOM: Yes.”
It is also accepted that references, in the history of some of the medical evidence to Mr Tuson’s injury having taken place on 31 December 2010 was erroneous (see T10.27 and T22.7) Cargill’s plant was closed for the Christmas holidays on 31 December 2010.
Cargill submits that the Arbitrator erroneously accepted that Mr Tuson’s symptoms from January 2011 arose from the incident on 16 December 2010. It submitted that that proposition relied almost entirely on Mr Tuson’s evidence, which Cargill submits was contrary to the weight of evidence in that it fails to take account of:
(a) the histories recorded by Drs Diebold, Christie and Ms Blackman that Mr Tuson suffered lower back symptoms prior to 16 December 2010;
(b) that Mr Tuson was able to continue normal duties as a beef boner for at least two weeks after the pleaded incident;
(c) the lack of any recorded complaint to Ms Blackman or Dr Christie of any particular incident as being causative of his back complaints, and
(d) the history recorded by Dr Diebold on 7 January 2011.
Further Cargill submits that the Arbitrator fell into error by failing to place sufficient weight on:
(a) the fact that a history of back pain for some time was also recorded by the general practitioner on 9 November 2010;
(b) a similar history recorded by Dr Christie (that is, a history of back pain for four years;
(c) the history of a one year intermittent lower back pain recorded on 4 January 2011 by Ms Blackman, and
(d) Mr Tuson’s evidence that he left Cargill’s employ (for the first time) in 2009 to “try and find work that was less stress on my back”.
I reject these submissions for the following reasons. The Arbitrator accepted that Mr Tuson had complained of back pain from time to time prior to the injury on 16 December 2010. However, for the reasons explained by the Arbitrator and which I have extracted at [106] the Arbitrator concluded there had been a misunderstanding as to the nature of the history of prior back pain.
The first recorded entry of back pain is the entry in Dr Diebold’s notes on 20 July 2007 where he recorded a complaint made by Mr Tuson that he suffered low back pain over a two week period. Following that incident, there was no further treatment undertaken by Mr Tuson or any recorded complaint of back pain until February 2010. The Arbitrator concluded, therefore, that a history of continuous back pain for three and a half years prior to 16 December 2010, as recorded by Dr Diebold was inconsistent with the records retained by the Peel Health Care Centre. That was correct. If Mr Tuson was suffering back symptoms between 2007 and 2010, the symptoms were not of sufficient intensity to cause him to seek any medical advice or treatment. Therefore, viewed in the proper context, Mr Tuson’s back symptoms prior to 16 December 2010 were of limited relevance to the issues in dispute.
Dr Christie’s report is essentially directed to the question of whether surgery was a reasonable treatment option. His history is equivocal and does not really assist either party because it records the onset of leg pain about six months prior to July 2012. That history accords with Mr Tuson’s complaints of leg pain. It was never part of Mr Tuson’s case that the symptoms of leg pain commenced at the time of the initial injury. His counsel, Mr Judd, submitted (at T15.10) that the prolapse which occurred on 16 December 2010 progressed over time and ultimately caused a compression of the nerves in the lumbar spine.
It is true that Mr Tuson commenced having problems with his back in 2007, which roughly accords with the history he gave Dr Christie of pain of about four years duration. Dr Christie did not elaborate whether that history indicated four years of continuous pain or episodic pain over that period. The purpose of the visit to Dr Christie was to explore treatment options for Mr Tuson’s condition which by then had become acute. In circumstances where it was accepted the Mr Tuson had an accepted back injury, it is understandable that both Dr Christie and Mr Tuson would have been more focused on his condition than the minutiae of his history, and for these reasons Dr Christie’s history did not advance the issue before the Arbitrator.
In terms of the history recorded by Ms Blackman in her note of 4 January 2011, Ms Blackman recorded a history of one year of intermittent lower back pain, stating that Mr Tuson was unable to identify any incident of onset, but he related it to his work at the abattoir. In the same report, Ms Blackman indicated that during assessment, Mr Tuson reported intense left lower back pain following his shift on 31 December 2010. As I have indicated, it is accepted that the reference to 31 December 2010 is an error because the plant was closed on 31 December 2010. In these circumstances, Ms Blackman’s history supports Mr Tuson’s claim that although he may have had intermittent lower back pain, from time to time, he suffered from an episode of intense lower left back pain, following the reported incident, which persisted. Whilst the Arbitrator made no reference to the history recorded by Ms Blackman, it is of no consequence because, if anything, it supports the Arbitrator’s conclusion.
Noting that Mr Tuson has been a patient of the Peel Health Care Centre since April 2007, the only other recorded incident with respect to Mr Tuson’s back occurred on 9 November 2010 (referred to [38] of this decision). On that occasion Mr Tuson was involved in a fight on Melbourne Cup Day. He attended Dr Magno and complained of hurting his knuckles, however, it seems he also reported a stiff back which he had “for a while”. It is apparent from the records that Mr Tuson was not offered any treatment or follow-up investigations and was invited to return to seek further treatment if his back did not improve. There was no evidence that he sought any further treatment with respect to the incident on 9 November 2010. I infer that he continued working as a boner after that incident. When compared to the history of regular complaints and treatment following the injury on 16 December 2010, it is apparent that this was a minor and transient incident.
The employer’s medical centre records also fail to reveal any evidence of complaints of back pain between September 2008, which was the date of the first entry concerning Mr Tuson, and 16 December 2010, when Mr Tuson suffered the admitted injury. This again supports the conclusion that whatever symptoms were being experienced by Mr Tuson prior to December 2010, they were not sufficient to cause him to make complaints or seek treatment at Cargill’s medical facility.
Whether Mr Tuson continued to work on normal duties as a beef boner for two weeks after 16 December 2010, as Cargill submits, cannot be ascertained from the evidence. The evidence does reveal that on 17 December 2010, the day after the injury, Mr Tuson reported on two occasions at Cargill’s medical centre seeking pain relief. It is apparent that Cargill’s Meat Processing Plant closed down for some period over the Christmas New Year period, however the evidence does not reveal when it closed and when it reopened. It is reasonable to infer that the plant closed down some time prior to 25 December 2010, in which case Mr Tuson could not have been on duty for more than six working days after 16 December 2010 and before the Christmas closure.
Mr Tuson’s unchallenged evidence is that he went on to work suitable duties soon after the injury, but he could not recall precisely when that occurred. He also said that he began to receive workers’ compensation weekly benefits. It would have been a simple matter for Cargill to lodge a schedule of benefits paid to Mr Tuson, which would have clarified when the weekly payments began, however, that did not occur. It is clear that from at least 4 January 2011, Mr Tuson was making regular complaints about back pain and seeking regular treatment. Dr Bosse noted pain and muscular spasm in the lumbar sacro-iliac joint and paravertebral lumbar muscles at that time. Having regard to this evidence, the fact that Mr Tuson worked for some indeterminate number of days between 16 December 2010 and 4 January 2011, is of limited, if any, significance particularly in circumstances where it is admitted that he suffered an injury on 16 December 2010.
In terms of the history noted by Dr Diebold. I note that Dr Diebold has not prepared a report for the purposes of these proceedings to explain how the entry recording three and a half years of back pain occurred. The records of the Peel Health Care Centre reveal that Mr Tuson visited the centre a number of times between 28 April 2007 and 9 November 2010 for various reasons yet failed to mention any problems with his back, except for the visit on 20 July 2007 and the incident on Melbourne Cup day in November 2010. Even then the history on 9 November 2010 is of a complaint of a stiff back not back pain. Assuming that Mr Tuson provided a history of three and a half years of back pain, which I note is consistent with his evidence, it is clear that he had not sought treatment except for the isolated incidents to which I have referred, such incidents being transient in nature.
Cargill submits that Dr Hopcroft’s report does not satisfy the test for the acceptance of expert evidence discussed in Paric v John Holland (Constructions) Pty Ltd [1958] HCA 58; 62 ALR 85 (Paric). Cargill submits that the inaccuracies in the history are not merely trifling, but are substantive, that is, including:
(a) the apparent failure of Mr Tuson to give a history of his prior back complaints or symptoms;
(b) the acceptance of Cargill placing Mr Tuson on light duties one hour after the incident, and
(c) the acceptance of a complaint of pain radiating to Mr Tuson’s left foot within a short time after the incident.
Cargill submits that all of these matters are contradicted by the substantive body of evidence and in light of this, the Arbitrator erred in his acceptance of Dr Hopcroft’s opinion, as opposed to that of Dr Millons, who it is submitted had a more accurate history and whose opinion should have been preferred.
In his supplementary statement of 28 December 2013, Mr Tuson clarified the circumstances surrounding the complaints of back pain prior to 16 December 2010. With respect to the incident on or about 20 July 2007, he said that he attended Dr Diebold and presented with some lower back pain which was making him feel stiff in the mornings. Dr Diebold prescribed pain killers after a week or two of this medication the pain subsided and he returned to pre-accident duties.
Mr Tuson said that on or around 9 November 2010 he saw Dr Magno to get a medical clearance to go back to work after having some days off with a sore hand. He acknowledged that he told Dr Magno that his back got stiff, but he said that the statement was more to do with how he felt after a day’s work boning, rather than how it felt after the incident on 16 December 2010. Mr Tuson’s evidence about those matters is unchallenged and was accepted by the Arbitrator. These were episodic and short lived episodes and on Mr Tuson’s evidence quite unlike the symptoms he suffered after the injury on 16 December 2010. It follows that Dr Hopcroft’s failure to record a history of Mr Tuson’s prior back complaints is of limited relevance.
Contrary to Cargill’s submissions, Dr Hopcroft did not record a history of left foot symptoms following the injury on 16 December 2010. He did however, record immediate left leg symptoms which did not accord with Mr Tuson’s evidence. That required the Arbitrator to consider the evidence on this issue. The Arbitrator noted the evidence of consistent complaints of a tender left “piriformis muscle” and “piriformis syndrome” following the injury on 16 December 2010, noting that that is a condition that relates to the buttocks region (T4.1). The evidence is that at least by 9 March 2011 there was evidence of radiating pain into the left buttock and left hip which is consistent with Mr Judd’s submission of the prolapse occurring on 16 December 2010.
I accept that whether Mr Tuson was placed on light duties within an hour of sustaining the injury cannot be corroborated and may or may not be correct. However there is evidence to confirm that on 17 December 2010, Mr Tuson sought pain relief on two occasions, which is consistent with significant symptoms occurring very soon after the accepted injury. In circumstances where it is conceded that Mr Tuson injured his back at work on 16 December 2010, exactly when he started on light duties is, as I have indicated, of limited relevance.
Moreover, it is trite law that the facts assumed by an expert do not have to correspond “with complete precision” with the facts established. It is a question of fact whether they are “sufficiently like” the facts established “to render the opinion of the expert of any value” (Paric at [69]). Dr Hopcroft’s history satisfies this test and the Arbitrator was entitled to accept it. The fact that Dr Hopcroft did not record a history of two isolated episodes of short-lived back pain or whether he commenced on light duties within an hour or at some later time proximate to the occurrence of the admitted injury does not diminish the weight to be attached to his opinion. For these reasons I reject the submission that Dr Hopcroft’s evidence was not sufficiently like the established facts to make it reliable.
Moreover, the Arbitrator’s decision did not turn on an assessment of the weight to be attached to the expert evidence. The Arbitrator’s decision turned on his acceptance of Mr Tuson’s evidence of a history of continuing back symptoms following the injury on 16 December 2010. The history provides ample evidence to support the Arbitrator’s conclusion that Mr Tuson suffered from continuing back symptoms following his accepted injury on 16 December 2010.
The Arbitrator also correctly concluded that notwithstanding an investigation into Mr Tuson’s employment after leaving Cargill, there was no evidence of any further injury or any continuing aggravation of his back injury from his post injury employment (T4.23). For this reason the Arbitrator was correct to reject the submission put to him at the arbitration (at T32.30) that there had been a break in the causal chain by reason of Mr Tuson’s post injury employment.
Dr Millons’s revised opinion was based on the premise that Mr Tuson’s problem was constitutionally based, and whilst there may have been aggravations of the underlying degenerative change at L4/S1 along the way, brought about by the nature and conditions of his employment and the normal activities of daily living, the incident of 16 December 2010 was only one such aggravation and probably not of itself “substantial”.
As Cargill conceded that Mr Tuson injured his back on 16 December 2010, Dr Millons’s statement that the injury was not “substantial” was of limited assistance in determining the issue in dispute. The question in dispute is whether the need for the treatment (surgery) resulted from the accepted injury in the sense discussed in Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), where Kirby P (as his Honour then was) held at 463G:
“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.”
Although the Arbitrator did not refer to Koorangang, in its terms, he approached the assessment of the evidence by making a commonsense evaluation of the causal chain. His findings, which I have extracted (at [108]), demonstrate that he applied the correct principles and acted in accordance with binding authority.
There is a further reason why the Arbitrator did not err by not accepting Dr Millons’s opinion. Dr Millions was asked to provide his opinion on several issues. Relevantly he was asked if Mr Tuson’s condition resulted from an aggravation, acceleration, exacerbation or deterioration of a disease and whether Mr Tuson’s condition had been aggravated by his subsequent employment. Dr Millions was not asked to opine on the issue before the Arbitrator namely whether Mr Tuson’s treatment and surgery resulted from the accepted injury. Therefore he did not address the relevant issue.
It is trite law that a condition can have multiple causes (ACQ Pty Ltd v Cook[2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). More importantly, the injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act. As the section states, Mr Tuson only has to establish that the treatment is reasonably necessary “as a result of” the injury. On the evidence called, which the Arbitrator accepted, Mr Tuson easily met that test.
For these reasons I reject the submission that the Arbitrator erred in not preferring Dr Millons’s opinion. There was ample evidence including Mr Tuson’s unchallenged evidence and the objective evidence of a continuity of symptoms to support the Arbitrator’s conclusion that there had been an unbroken causal chain between the onset of symptoms on 16 December 2010 and the need for subsequent surgery.
Reasons
Cargill submits that the Arbitrator was required to give reasons that demonstrate that all the evidence had been considered and why relevant findings of fact and conclusions were made: Beal v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 442.
Cargill submits that the Arbitrator failed to refer to competing submissions in any substantial detail, failed to provide any deliberation concerning the arguments advanced and any evaluation of the medical evidence. It complains that its submissions were not canvassed in the Arbitrator’s reasons and that he failed to refer to contemporaneous histories in early January 2011 recorded by treatment providers, which failed to record any history of injury on 16 December 2010.
Cargill alleged that the Arbitrator failed to provide adequate reasons for matters that were put to him in support of the submission that there was no causal nexus between the incident on 16 December 2010 and the need for surgery. Those matters are referred to at [8] of the Application –Appeal Against Decision of Arbitrator, and are reproduced as follows:
“(a) The Applicant had symptoms of low back pain with radiation down to his knee in July 2007 and subsequently complained of back stiffness unrelated to work in November 2010 (Clinical notes – ARD – Pages 6 & 9).
(b) The Applicant did not attend a doctor immediately after the incident on 16 December 2010, despite in his evidence suggesting this was a significant event with pain radiating to his foot (see Worker’s statement – ARD – page 45 – paragraph 21 to 23).
(c) When he attended Dr Bosse on 4 January 2011 the history recorded was hurt lower back lifting and twisting at work on 31/12/10. There was no complaint recorded of pain radiating to his foot. (Clinical notes of Peel Health Care – ARD – page) [sic].
(d) When he saw a physiotherapist on 4 January 2011 he gave a history of 1 year intermittent low back pain and being unable to identify an incident of onset. He reported intense low back pain after his shift on 31 December 2010 (Report of Karen Blackman – ARD – page 24).
(e) When he attended his GP again on 7 January 2011 there was no record of a complaint of an incident on 16 December 2010, but of 3.5 years of low back pain which had continued to trouble the Respondent (Clinical Notes of Peel Health Care – ARD – top of page 10).
(f) When the Respondent saw Dr Hopcroft (his qualified specialist) on 23 October 2012 the history recorded was of no back pain problems prior to 16 December 2010, the Respondent only continued to work for one hour after that incident before with pain radiating into his left leg he was redirected onto light duties (Report of Dr Hopcroft – ARD – page 1 – paragraph 5).
(g) The Applicant did not mention the incident on 16 December 2010 (or any specific incident) in the history recorded by his treating specialist, Dr John Christie, to whom he gave a history of 4 years duration of back pain with the symptoms originally coming on whilst the Applicant was working for the Respondent (see Report of Dr Christie – ARD – page 30).
(h) The medical notes suggest a significant worsening of the Applicants’ [sic] condition in early 2012, as did the report of Dr Christie (see clinical notes of Peel Health Care – ARD – pages 11 to 13 and report of Dr Christie at page 30).
(i) In between the injury relied upon and the worsening symptoms in early 2012, the Applicant had engaged in farm work that involved digging and repetitive lifting (see Statement of Richard Wright – Appellant’s AALD (10/7/13) – Page 31 – commencing paragraph 10).”
In respect of the allegations of injury in July 2007 and November 2010, contrary to Cargill’s submissions, the Arbitrator dealt with those matters by finding that there had been a misunderstanding as to the history of prior back injuries. The Arbitrator held that in respect of the incident in 2007, the history was of two weeks of back pain which the Arbitrator concluded correctly was “quite short lived” (T6.28).
The fact that the Arbitrator did not refer in his reasons to the absence of a report to a medical practitioner immediately after the incident on 16 December 2010 is of no consequence as it is admitted that Mr Tuson suffered an injury on 16 December 2010. The error in Dr Bosse’s notes of 4 January 2011, which recorded a history of injury on 31 December 2010, is also of no consequence. It is accepted that Cargill’s plant was closed on 31 December 2010 and that entry is clearly an error (T3.4).
The Arbitrator dealt with the onset of referred pain noting the symptoms by referring to Mr Tuson’s consistent complaints of tenderness and pain in the left buttock occurring soon after the injury on 16 December 2010.
The notes recorded by the physiotherapist Ms Blackman of an intermittent history of lower back pain for a one year period but with intense pain following the shift, erroneously referred to as 31 December 2010, is for the reasons I have given, essentially in accordance with Mr Tuson’s accepted evidence, and does not assist Cargill’s case. It is of no consequence that the Arbitrator did not refer to it.
Cargill submits that the Arbitrator failed to analyse the history of complaints of back pain for the three and a half years before the incident on 16 December 2010. That submission is not correct. The Arbitrator dealt with that issue (at T6.18) concluding that there had been a misunderstanding as to the nature of the history recorded.
I accept Cargill’s submission that the Arbitrator made no mention of Dr Hopcroft’s opinion and some of the inconsistencies referred to in his report in terms of the history he recorded. However, the Arbitrator did not rely on Dr Hopcroft’s opinion in reaching his ultimate conclusion. His conclusion was not based on the expert evidence but upon the acceptance of an unbroken causal chain and a continuity of symptoms stemming from the injury on 16 December 2010 and leading to the subsequent surgery. This acceptance turned on the Arbitrator’s acceptance of Mr Tuson’s evidence of a continuity of symptoms from 16 December 2010. That acceptance disclosed no error. Moreover, as explained above, the errors in Dr Hopcroft’s history are of no consequence.
I accept that the Arbitrator, in his reasons, failed to mention the history recorded by Dr Christie, and in particular the absence of a recorded incident on 16 December 2010. For the reasons that I have previously indicated, Dr Christie’s opinion is not directed to the question of causation, but is directed towards the need for treatment which he clearly supported.
Cargill submitted that the Arbitrator failed to consider the work engaged in by Mr Tuson subsequent to his resignation from his employment at Cargill. That submission is not correct. The Arbitrator analysed the work that Mr Tuson performed both with Mr Spencer and Mr Wright, and concluded that the work with Mr Spencer was not particularly arduous (T4.29). In respect of the work with Mr Wright, the Arbitrator concluded (T4.35) that the employment with Mr Spencer [sic, Wright] although arduous to a degree, may have caused a manifestation of the pain, but it reverted to the level of pain suffered by Mr Tuson before engaging in that employment. In other words, neither the work with Mr Spencer or Mr Wright caused or contributed to the need for surgery.
I accept that the Arbitrator’s reasons do not recite all of the evidence and the submissions before him, however, he was not required to do so to discharge his statutory obligation (Mifsud v Campbell (1991) 21 NSWLR 725 at 728). His reasons address the critical issue, namely whether the treatment in 2013 resulted from the accepted injury in 2010.
The Arbitrator’s essential reasons for reaching his conclusions are as follows:
(a) Mr Tuson was concerned to leave his employment with Cargill with a clear medical certificate which explains how he progressed from having serious limitations on his capacity for work at the end of March 2011, yet was certified fit for full duties on 6 April 2011;
(b) the Arbitrator excluded Mr Tuson’s post injury employment as a contributing factor to the need for treatment and surgery;
(c) Mr Tuson had made consistent complaints of pain since the injury was sustained on 16 December 2010. By early March 2012 his condition had deteriorated to the point where he was complaining of radiating pain;
(d) the Arbitrator’s acceptance of Mr Tuson’s evidence of continuing complaints of pain, and
(e) the Arbitrator’s finding that there had been a misunderstanding in relation to the nature and extent of Mr Tuson’s complaints of back pain prior to 16 December 2010.
The Arbitrator’s reasons adequately explain the essential grounds on which his decision rested (Soulemezis). They were sufficient to discharge his statutory obligation to provide reasons, consequently this ground of appeal fails.
DECISION
The Arbitrator’s determination of 13 February 2014 is confirmed.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal.
Judge Keating
President
20 June 2014
I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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