Clarke v Ramsay Health Care Australia
[2017] WADC 117
•1 SEPTEMBER 2017
CLARKE -v- RAMSAY HEALTH CARE AUSTRALIA [2017] WADC 117
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 117 | |
| Case No: | APP:1/2017 | 17 JULY 2017 | |
| Coram: | BOWDEN DCJ | 1/09/17 | |
| PERTH | |||
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal dismissed | ||
| PDF Version |
| Parties: | TERESA WILMA CLARKE RAMSAY HEALTH CARE AUSTRALIA |
Catchwords: | Workers' compensation Schedule 1 cl 17 expenses Sufficiency of evidence Connection with compensable injury |
Legislation: | Workers' Compensation and Injury Management Act 1981 |
Case References: | Agresta v Agresta [2002] VSCA 23 Atanasoska v Inghams Enterprise Pty Ltd [2009] WASCA 17 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 Erceg v Galati Nominees Pty Ltd [2016] WASCA 112 Hawker Pacific Pty Ltd v Lang [2015] WASCA 256 Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182 Minister of Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Napier v BHP Billiton (Worsley Alumina Pty Ltd) [2015] WASCA 230 Pacific Industrial Co v Jakovljevic [2008] WASCA 60 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 Watts v Rake [1960] HCA 58 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
RAMSAY HEALTH CARE AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram : ARBITRATOR RUTHERFORD
File No : A 30472 of 2016
Catchwords:
Workers' compensation - Schedule 1 cl 17 expenses - Sufficiency of evidence - Connection with compensable injury
Legislation:
Workers' Compensation and Injury Management Act 1981
Result:
Leave to appeal granted
Appeal dismissed
Representation:
Counsel:
Appellant : Mr A J Stewart
Respondent : Mr A Vucak
Solicitors:
Appellant : Chapmans Barristers & Solicitors
Respondent : Hall & Wilcox
Case(s) referred to in judgment(s):
Agresta v Agresta [2002] VSCA 23
Atanasoska v Inghams Enterprise Pty Ltd [2009] WASCA 17
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Erceg v Galati Nominees Pty Ltd [2016] WASCA 112
Hawker Pacific Pty Ltd v Lang [2015] WASCA 256
Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182
Minister of Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Napier v BHP Billiton (Worsley Alumina Pty Ltd) [2015] WASCA 230
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Watts v Rake [1960] HCA 58
- BOWDEN DCJ:
Introduction
1 The background facts are not in dispute and are set out in detail in the arbitrator's reasons. I summarise them as follows.
2 Ms Clarke was employed by Ramsay Health Care Australia (Ramsay) as a registered nurse at the Joondalup Health Campus. On 13 September 2009 she injured her lower back at work and claimed compensation under the Workers' Compensation and Injury Management Act 1981 (WA) (the Act). Liability was accepted for that injury (the compensable injury).
3 Subsequently Ms Clarke was diagnosed with severe depression said to be a consequence of chronic lower back pain
4 Ms Clarke resigned from her employment with Ramsay on 7 November 2010 and on 17 January 2011 commenced employment with the King Edward Memorial Hospital in a different role.
5 In 2016 Ms Clarke sought an order that Ramsay pay weekly payments of compensation for total incapacity for the period:
1. 18 November 2010 to 16 January 2011;
2. 24 September 2015 to 2 October 2015; and
3. reimburse her for various medical and other expenses incurred pursuant to sch 1 cl 17 of the Act relating to psychological symptoms.
6 Ramsay denied it was liable to pay either the weekly payments or the sch 17 expenses.
7 The matter proceeded to arbitration on 26 August and 2 September 2016.
8 On 20 December 2016 Arbitrator Rutherford determined that:
1. he was not satisfied that the evidence established that Ramsay was liable to pay weekly payments for the claimed periods;
2. he was not satisfied that the evidence established that Ramsay was liable to reimburse Ms Clarke for the claimed sch 17 expenses and, accordingly, dismissed Ms Clarke's application.
The appeal
9 Ms Clarke appealed on the following grounds:
Grounds of appeal
1. The learned Arbitrator erred in law insofar as he failed to comprehend the nature of the appellant's 'injury' (as defined), which error prevented the learned Arbitrator properly determining relevant facts and applying those facts to the law:
Particulars
- (i) The appellant suffered physical injury to her back at work with the respondent on 13 September 2009, claimed statutory benefits in respect of 'injury' as defined, had liability accepted by the respondent and received payment of weekly compensation payments and statutory entitlements provided for by Schedule 1 of the Act;
(ii) The appellant claimed, as a result of the physical injury referred to in (i) above, she suffered psychological injury (that is, as a sequelae to the physical injury);
(iii) The learned Arbitrator at paragraph 119 of his Reasons for Decision (page 32) applied the factors set out in subsection 5(5) of the Act in determining the nature and scope of the injury suffered by the appellant.
2. Further, including as a consequence (at least in part) of his error above, the learned Arbitrator erred insofar as he failed to pose for himself the correct test as to the 'required connection' between the worker's injury and the statutory expenses claimed; in particular, whether the particular expenses (which the learned Arbitrator held were reasonable – at p.164, page 43 Reasons) related to medical attendance or treatment that was for the purpose of alleviating, remedying, curing or preventing the deterioration of:
(i) the injury in respect of which liability had been admitted;
(ii) a disability that was wholly or partly caused by or attributable to the injury referred to in (i); or
(iii) any symptoms or effects wholly or partly caused by or attributable to that injury referred to in (i), or the disability referred to in (ii).
Ref: Newnes JA at p127 in Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230, pages 31 and 32.
Particulars
- (i) The learned Arbitrator found the appellant had not proved her back pain resulted from the 13 September 2009 injury to her back, when (on the authority of (Watts v Rake [1960] HCA 58) it was for the respondent to lead evidence and to prove the appellant's back pain, in respect of which she required treatment including through disturbance to her psychological condition, was not causally linked to the 13 September 2009 injury.
Appeals to the District Court
11 Section 247(1) of the Act allows an appeal to the District Court from an arbitrator's written reasons for decision subject to the leave of the court.
12 Leave is not to be granted unless a question of law is involved. However, if a question of law is involved, leave should be granted if in all the circumstances it is in the interests of justice that there be a grant of leave: Paridis v Settlement Agents Supervisory Board [2007] WASCA 97.
13 If a ground of appeal, properly analysed, does not involve a question of law, the linguistic gymnastics in the formulation of the ground cannot alter the position: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250.
14 A question of law is involved where an error of law or an error of mixed law and fact is involved: Erceg v Galati Nominees Pty Ltd [2016] WASCA 112.
15 An error of law includes where a finding of fact has been made or an inference drawn without any evidence to support that finding.
16 No error of law is involved in making a wrong finding or inference of fact on the evidence (Atanasoska v Inghams Enterprise Pty Ltd [2009] WASCA 17) or by preferring one version of evidence or inferences over another version of evidence or inferences that are available: BHP Billiton Iron Ore Pty Ltd v Brady.
17 Even if correct findings and inferences are made, errors of law may be made at the stage where the decision makers direct themselves as to the law and at the stage of applying the law to the facts found: Azzopardiv Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 156.
18 An absence of evidence to sustain a finding or inference of fact gives rise to an error of law as does identifying a wrong issue, asking the wrong legal question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of the power: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355; Minister of Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 351.
19 An error of law occurs where the absence of reasons frustrates a right of appeal. This occurs if the appellate court is unable to ascertain the reasoning upon which the decision is based. Where the reasons are inadequate will depend upon the nature of the decision and the circumstances of the case: Agresta v Agresta [2002] VSCA 23.
20 A decision will not involve an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been different: Australian Broadcasting Tribunal v Bond.
21 If a question of law is involved then the whole decision appealed from is open to review and not merely the question of law: Pacific Industrial Co v Jakovljevic [2008] WASCA 60.
The arbitrator's decision
22 In relation to the sch 1 expenses, Arbitrator Rutherford made the following findings.
As to the travel expenses
… even though the prescribed rate is being claimed, no evidence has been given to prove the distance which provides a basis of each claim, even in general terms. Further, there are some minor discrepancies between the Goodbourn record of attendances and that of Ms Clarke – for example the parking claims for 15/10/2012 to 31/12/2012 do not accord with the attendances listed by Dr Goodbourn. In addition, the distance claimed is the same on each occasion, whether to Dr Goodbourn or to the Pharmacy. This suggests that the distance claimed could be between Ms Clarke's residence and surgery/pharmacy, yet Ms Clarke has been working during this period. Therefore even though the correct rate has been applied, I am not satisfied the claimed expenses are anything other than a broad brush estimate based on reconstruction. I do not consider I can properly make an order in such circumstances as there is no or no reliable evidence establishing the basis for these expenses. [146]
As to the medical expense for the lower back injury.
23 The arbitrator found that the compensable injury occurred in 2009 and was described as 'back sprain' with 'no radiation'. He noted there appeared to be work-related aggravation in June 2010 (progress medical certificate 21 June 2010) caused by bending for a long period of time which led to a reduced range of movements.
24 The arbitrator found that in July 2010 the back pain symptoms were slightly improved and noted a reference that the back pain was 'slightly worse yesterday for no reason' which he found when taken with the other medical certificates suggested that during this period the back remained susceptible to problems from time to time.
25 The arbitrator noted that in November 2010 Dr Terry certified Ms Clarke as fully recovered at least from the back condition, and that certification was re-stated in February 2011 however, on 21 July 2011 Dr Terry's progress certificate stated 'residual back pain now working in different workplace but requires ongoing treatment'. The arbitrator noted this was repeated in certificates provided in August 2011 and September 2011.
26 The arbitrator noted that Ms Clarke's statement attested to ongoing pain but found she gave no evidence about what, if anything, occurred in about July 2011 which led to her further back pain problems especially in the context of her new duties being less physical than before. He noted that by that stage she had been working at King Edward for about six months.
27 The arbitrator found:
[151] Dr Terace in his July 2011 report stated that the low back pain has increased over the last 4 – 6 weeks, that it had 'returned' but with no explanation noted.
[152] Dr Goodbourn in his October 2011 report referred to a 'background of chronic pain'.
[153] There is no 2011 report been adduced from Dr Vaughan although his 2016 report states 'She was employed at King Edward Memorial Hospital in 2011. She remembered suffering a significant reduction in her income at that time, then ongoing symptoms as reported in my earlier review' – refer page 3. I deduce that Dr Vaughan was there referring to physical symptoms. I am however otherwise uninformed as to what happened in 2011 such as to produce Ms Clarke's lower back symptoms in about July that year.
[154] Dr Vaughan examined Ms Clarke in 2016. Presumably based on information from Ms Clarke he noted that low back symptoms had not changed much from 2009. He concluded that in the absence of any factors Ms Clarke's current low back complaints were caused or materially contributed by the 2009 compensable injury – refer page 2 of his April 2016 report. This was so notwithstanding the skydiving event being brought to his attention.
[155] However, as earlier observed, Ms Clarke gives no evidence about what occurred in about July 2011. The Final Medical Certificate clearly certifies full physical recovery yet about eight months later Ms Clarke reports unexplained back symptoms while working elsewhere and in less physical work than at Ramsay.
[156] I accept that in 2010 Ms Clarke's back symptoms appeared to temporarily increase from time to time, but that was in circumstances where there were ongoing symptoms; here, I understand there were no symptoms for months. No witnesses address this issue in any meaningful way, if at all.
[157] I accept that Dr Vaughan as a medical expert appears to have accepted that Ms Clarke's ongoing pain results from the compensable injury but does not in my view explain why that is the case, other than not challenge the veracity of Ms Clarke's evidence. Ms Clarke however gives no evidence about this period.
[158] After considering all the available evidence, I am not satisfied that the reported chronic low back pain results from the compensable injury. Ms Clarke clearly suffered back pain after the injury in 2009. Thereafter Ms Clarke went through a period of recovery albeit punctuated by instances of fluctuating pain. Nonetheless, there was recovery.
[159] During the recovery period while at Ramsay, as I understand it, Ms Clarke was working in a more supervisory role although she did have physical work from time to time. She then changed jobs, with a role that I understand from the evidence to be less physical than her pre-injury employment duties. Ms Clarke did that work for a period of some six months presumably without pain – refer for example the progress certificate during this period – or at least there is no evidence of pain being experienced and/or reported.
[160] Thereafter, i.e. after July 2011 Ms Clarke contends she has been in chronic pain with little if any recovery. That there is little recovery appears at odds with the Ramsay period of employment, where there was recovery. It is possible that her new duties contributed in some way, but even with her prior supervisory duties, pain was at times aggravated. I do not understand the aetiology of the pain from 17 July 2011 – it is not clear to me what the cause of that pain is.
[161] In my view this is not a case where the compensable injury can be said to be a material cause, with other competing causes, nor is it the case where there is evidence of an underlying disease; in this case there is a soft tissue injury from which Ms Clarke fully recovers and then for no explained reason she again complains of low back pain some eight months after recovery and some six months after commencing working and after a progress certificate also reporting no back pain.
[162] I accept there is no requirement that there needs to be a continual link in the chain of causation, only that the incapacity or expense results from the compensable injury, that there is a connection with the compensable injury. However, there needs to be sufficient evidence to establish that connection and in this case, I am not satisfied that is so. In essence I am not persuaded that the claimed pain results from the compensable injury. It is of course possible that it does so, but in my view the evidence does not establish that is the case on the balance of probabilities.
[163] On that basis I therefore find that there is no or no sufficient connection between the compensable injury and the expenses claimed, those expenses being the medical attendances with Dr Loy and Dr Terry and for Panadol Osteo and Naprosyn – refer the April 2016 report of Dr Vaughan who mentioned these medications.
[164] In that regard, I pause to note that there is no specific challenge by Ramsay to the actual cost of these attendances and/or medications and, save for my earlier findings, I accept that the expenses are reasonable. However, for the reason expressed, I conclude that the expenses claimed are not reasonable expenses with Sch 1 cl 17 of the Act, for the reasons expressed.
As to expenses related to depression
28 The arbitrator found:
[165] Ms Clarke's evidence and contention is that her depression is a consequence of her chronic back pain. Given my finding that Ms Clarke's back pain is not a result of the compensable injury, it follows that the costs of attendances with her psychiatrist and the cost of prescription drugs (Pristiq and the like) are not reasonable expenses within Sch 1 cl 17 of the Act, as there is insufficient evidence to establish a connection between the compensable injury and these expenses from 2011 onwards. The psychiatric evidence, that the compensable injury is a material cause of the depression, is based on the proposition that there is a chronicity of low back pain which is materially caused by the compensable injury (even though non-work factors are also relevant to the maintenance of the depression – refer the evidence of Dr Terace). As I am not persuaded the evidence establishes that the low back pain is a result of the compensable injury, it follows the expenses related to the depressive condition are not connected with the injury and therefore are not reasonable expenses which are payable within Sch 1 cl 17 of the Act.
[166] I should add that the actual amount of these expenses do not appear in dispute i.e. the amount of the psychiatric charges and medication costs are not challenged by Ramsay. I find that these expenses are reasonable as to the amount charged, but I consider these are not reasonable expenses within Sch 1 cl 17, for the reasons provided.
[167] Given the above, I do not consider that Ms Clarke has adduced significant evidence to substantiate her various claims.
[168] On that basis, Ms Clarke's application is dismissed.
Ms Clarke's submissions on appeal.
29 Prior to the appeal, Ms Clarke advised the solicitors for Ramsey that 'the appeal will primary rest upon ground 2, in any event, ground 1 will be pursued to the extent that is necessary'. At the hearing of the appeal Mr Stewart said 'it's probable' only ground 2 is really required … and very little will rest on ground 1'.
30 In those circumstances it is appropriate to deal with ground 2 first.
Appeal ground 2
31 As to ground 2, Mr Stewart's primary argument was that Napier v BHP Billiton(Worsley Alumina Pty Ltd) [2015] WASCA 230,provided the test in relation to causation for statutory expenses under cl 17 and the arbitrator made a fundamental error of law in failing to apply the Napiertest.
32 In particular, he says the arbitrator was wrong in fact and law to conclude that in light of his finding that the back pain suffered by Ms Clarke was not a result of the compensable injury, it followed that any expense relating to the psychological condition was not connected with the injury.
33 Mr Stewart says the following questions should have been asked by the arbitrator:
1. What is the required connection between the treatment and the injury in order for the treatment to be 'reasonable expenses' for the purpose of cl 17?
2. Is there any evidence of that connection? (Hawker Pacific Pty Ltd v Lang [2015] WASCA 256).
34 Mr Stewart submitted that it was not a question of whether the condition disability or symptoms being treated resulted from or was contributed to by the original injury. He said the relevant question was whether the expense claimed was reasonable and in order to be reasonable there must be the required connection as stated in Napier's case.
35 He said the arbitrator made findings about the lower back but needed to make findings in relation to the psychiatric evidence and specifically had to address whether there was the connection enunciated inNapier. If that connection was established, then the arbitrator's finding that the amounts were not in dispute and were reasonable amounts meant the statutory expenses ought be allowed.
36 Mr Stewart's argued that applying the Napier test to Ms Clarke's psychological condition, the arbitrator should have found that the psychological injury is a 'disability that is wholly or partly caused by or attributed to' the compensable injury (lower back) or, alternatively, the psychological symptoms and effects are wholly or partly caused by, or attributed to, that compensable injury (lower back).
37 Mr Stewart's written submissions drew attention to the following evidence before evidence the arbitrator including:
1. Dr Goodbourn's report of 4 October 2011 (AB 18) which concluded that Ms Clarke had a major depressive episode with numerous symptoms in the context of a major loss in her employment status.
2. Dr Goodbourn's report of 14 July 2016 (AB 1) which details 60 attendances from 2011 to 2016 and concludes that 'the original injury, the way she feels she was treated by her employer and the subsequent retraining have all contributed to problems with anxiety, low mood and low self-esteem'.
3. Dr Terace's report of 1 July 2010 (AB 79) which concluded that Ms Clarke had a major depression and that the events at the date of the injury have materially and significantly contributed to the contraction of the psychiatric condition.
38 Mr Stewart argued that whilst all the medical practitioners considered that there were multiple causal factors relating to the psychological injury including those unrelated to her work injury, they nevertheless concluded that at the relevant time the lower back injury sustained on 13 September 2009, being a compensable injury, was a significant factor.
39 Mr Stewart's submission that Arbitrator Rutherford recognised at [102] that Dr Terace's report of 2 May 2016 (AB 138), demonstrates that Ms Clarke's psychological condition had not fully resolved and remained at least in part a condition contributed to by the lower back pain is misconceived. At [102], Arbitrator Rutherford did no more than recite Dr Terace's report of 2 May 2016 and he was, at that stage, not make any finding of fact based on that report.
The submissions on behalf of Ramsay
40 As to the travel and parking expenses, Mr Vucak submits the arbitrator's findings [146] that those expenses had not been established has not been challenged.
41 In relation to the psychological expenses, Mr Vucak points out the arbitrator correctly identified the compensable injury as a strain or sprain affecting the tissue near the L4/5 segment and found that the evidence showed that Ms Clarke had made a complete recovery from that injury: [84].
42 Mr Vucak points out that the arbitrator found that there was no sufficient connection between the compensable injury and the expenses for psychiatric attendance/treatment as the evidence did not establish the compensable injury was sufficiently connected to the expenses claimed: [131], [165].
43 Mr Vucak says that the starting point is to identify the compensable injury (back sprain) and then establish whether the compensable injury was a cause of the psychiatric injury. He says that in this regard the normal common law test of causation is applied, that is, the compensable injury, must be a material contributing cause to, in this case, the psychiatric injury: Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182.
44 Mr Vucak submits that it is only after it is established that the treatment expense is for an injury, disease or symptom that was material contributed to by the compensable injury do you then consider whether the expense was a reasonable expense using the Napier test.
The law
Napier v BHP Billiton (Worsley Alumina Pty Ltd)
45 Napierdetermined that the existence of a compensable 'injury' as defined in s 5(1) of the Act is the core concept of the Act and held that it is the occurrence of an injury to a worker that triggers the entitlement of a worker and the liability of the employer, subject to the Act, to pay compensation.
46 In Napier, Buss JA (Newnes JA substantially agreeing) held that the required connection, for the purposes of cl 17(1) of sch 1, between a worker's 'injury' (as defined in s 5(1) of the Act) on the one hand, and the relevant medical or surgical treatment on the other, is as follows.
The relevant medical or surgical treatment must be by a medical practitioner for the purpose of alleviating, remedying, curing or preventing the deterioration of:
(a) the 'injury' (as defined in s 5(1) of the Act) of the worker which is compensable under the Act; or
(b) a disability that is wholly or partly caused by or attributable to the compensable 'injury'; or
(c) any symptoms or effects wholly or partly caused by or attributable to the compensable 'injury' or a disability within par (b) [108].
Expenses incurred or likely to be incurred in respect of medical or surgical attendance or treatment will be 'reasonable' expenses, within cl 17(1) of sch 1, if:
(a) it was or is reasonable, in all the circumstances, for the relevant medical or surgical attendance or treatment to be given, provided or undertaken; and
(b) the amount of the expenses incurred or likely to be incurred was or is reasonable in all the circumstances
The reasonableness of expenses incurred or likely to be incurred will in each case involve a question or questions of fact.
Conclusion on Ground 2
47 In summary, Ms Clarke says that the appropriate approach is to look first at the treatment expenses and then see if it has the required Napier connection.
48 Ramsay Health say that the appropriate approach is to identify the compensable injury, then identify the effect, symptom or disability for which the treatment or attended expenses is being claimed and ask whether that symptom is causally connected in the Legett sense with the compensable injury and, if it is, then ask whether the expenses have the required Napier connection.
49 Ultimately, in the circumstances of this case, it does not appear to me that the result would be any different irrespective of the approach taken. In my view, the correct approach is to look at the treatment expenses claimed and then see if it has the required Napier connection. This is exactly what the arbitrator did.
50 The arbitrator found that the compensable injury was the back sprain which suggested a soft tissue injury of some kind affecting the tissue near the L4/5 segment: [63], [84].
51 The expenses claimed were for psychological treatment.
52 The connection required is as stated inNapier. Clearly, the arbitrator did not overlook that test. At [26] he stated:
As to the claim for expenses, for there to be any entitlement to clause 17 and clause 19 expenses, an applicant must have a compensable injury under the Act and the incurred or likely to be incurred expense must have a connection with that injury. That connection is a necessary, but not of itself sufficient, condition of reasonableness. See Napier v BHP Billiton (Worley Allumina) Pty Ltd [2015] WASCA 230 per McLure P [2] – [15], see also the observations of his Honour Newnes on issues relevant to the determination of reasonableness at [ 127] – [128]. This decision was followed in Hawker Pacific Pty Ltd v Lang [2015] WASCA 256.
53 The arbitrator correctly identified the issues requiring determination as including [11]:
(d) In relation to the claim of expenses relating to the psychiatric evidence:
(i) has Ms Clarke continued to suffer from depression during the claimed period;
(ii) is there a connection between the claimed treatment for which expenses are claimed and the compensable injury;
(iii) if so is Ramsey liable to pay for any incurred expenses.
55 Mr Stewart says that there was evidence establishing that connection found in Dr Goodbourn and Dr Terace's reports referred to above and Dr Vaughan's report referred to below which essentially say the compensable injury was a significant factor in Ms Clarke's psychological condition and the expenses were incurred in treating that condition.
56 However, that is the very evidence that was not accepted by the arbitrator.
57 The arbitrator correctly acknowledged that it was Ms Clarke's contention that the medical expenses were incurred as a result of the depression, that is the depression resulted from her chronic back pain, ie, her chronic pain maintains her depression, and the chronic back pain was wholly or partly caused by, or attributable to, the compensable injury. The arbitrator acknowledged that proposition was consistent with the psychiatric evidence based on the history provided to them by Ms Clarke.
58 However, the arbitrator was 'left with significant doubts as to the basis/cause of her chronic pain from 2011'[130] and found that:
Given those doubts I am unable to accept that Ms Clarke's depression results from the compensable injury as I do not accept the evidence establishes on the balance of probabilities that the chronic pain results from the compensable injury. [131]
59 The arbitrator found there had been an eight-month gap between Ms Clarke's full recovery from the compensable injury and back pain being recorded again in August 2011. He found that Ms Clarke had recovered from the back pain caused by the compensable injury [158] as there was no evidence of pain being experienced and/or reported during the period when Ms Clarke worked in a more supervisory role or when she changed employment to a less physically demanding job where she worked for about six months: [159].
60 The arbitrator noted that after July 2011 Ms Clarke contended that she had been in chronic pain with little, if any, recovery, observing that this was at odds with the Ramsey period of employment where there was recovery. The arbitrator found there was no evidence explaining how or why Ms Clarke had that back pain in August 2011 ([128], [129], [150], [155], [156]) and stated that he did not understand the aetiology of the pain from 17 July 2011 and it was not clear to him what caused that pain: [160].
61 Of significance is the arbitrators' finding that:
... this is not a case where the compensable injury can be said to be a material cause with other competing causes nor is it the case where there is any evidence of an underlying disease. In this case there is a soft tissue injury from which Ms Clarke fully recovers and then for no explained reason she again complains of lower back pain some eight months after recover and some six months after commencing work and after a progress certificate also reports no back pain. [161]
I accept that there is no requirement that there needs to be a continuing link in the chain of causation, only that the incapacity or expense results from the compensable injury, that there is a connection with the compensable injury. However, there needs to be sufficient evidence to establish that connection and in this case I am not satisfied that it is so. In essence, I am not persuaded that the claimed pain results from the compensable injury. [162]
On that basis I find there is no or no sufficient connection between the compensable injury and the expenses claimed. [163]
... The psychiatric evidence that the compensable injury is a material cause of the depression is based on the proposition that there is a chronicity of low back pain which is materially caused by the compensable injury (even thou though non work factors are also relevant to the maintenance of the depression – refer the evidence of Dr Terace). As I am not persuaded that the evidence establishes that the lower back pain is a result of the compensable injury, it follows the expenses relating to the depressive condition are not connected with the injury and therefore are not reasonable expenses which are payable within sch 1 cl 17 of the Act. [166]
62 The arbitrator was aware of the need for a connection between the compensable injury and the expenses claimed and sufficient evidence to establish that connection.
63 In respect of the Napier connection that the expenses claimed were for medical treatment for the purpose of alleviating, remedying, curing or preventing the deterioration of the compensable injury which the respondent suffered in 2009 ('back sprain with no radiation' [147]), the arbitrator found positively that Ms Clarke had recovered from that injury ([158], [159], [161], [165]). Further he was not satisfied that Ms Clarke's reported chronic low back pain which resulted in the depressive condition for which the expenses were incurred resulted from the compensable injury and thus there was no sufficient connection between the compensable injury and the expense claimed.
64 In respect of the Napier connection, that the expenses claimed were for medical treatment for the purpose of alleviating, remedying, curing or preventing the deterioration of (b) a disability that was wholly or partly caused by or attributable to the compensable injury; or (c) any symptoms or effects wholly or partly caused by or a disability referred to in (b) the arbitrator found as a fact that the expenses for psychological treatment was necessary as a result of Ms Clarke suffering from the chronic lower back pain and found that it was not clear what the cause of that chronic back pain was [160].
65 In light of the finding that it was not clear what caused the chronic lower back pain, Ms Clarke had failed to establish the connection required by Napier. The onus was on Ms Clarke to establish that connection and the arbitrator found that connection was not established.
66 In the factual circumstances of this application, for Ms Clarke to succeed she would need to have satisfied the arbitrator that the medical expenses claimed for her depressive condition were wholly or partly caused by, or attributable to, the compensable injury (the lower back pain) or by any disability symptoms or effects wholly or partly caused by, or attributable to, the compensable injury or any symptoms or effects that was wholly or partly caused by a disability wholly or partly caused by, or attributable to, the compensable injury.
67 The arbitrator referred to the Napiercase in his reasons. Whilst he did not recite the words of the Napiertest, he was clearly aware that it set out the test for the relevant connection. He was aware of the need for that connection, referring to it numerous times, and made all the findings of fact necessary to determine whether that connection directly or indirectly was established. He was not satisfied of that connection.
68 The arbitrator answered the very questions that Mr Stewart postulated he should have asked. He made the specific findings in relation to the psychiatric evidence, that is, that the expenses were incurred for the psychological treatment which was necessary as a result of the chronic back pain, but was not satisfied such pain was connected with the compensable injury.
69 In relation to Watts v Rake [1960] HCA 58, the particulars of appeal asserts that it was for Ramsay to prove Ms Clarke's back pain in respect of which she required treatment including through disturbance to her psychological condition was not causally linked to the 13 September 2009 injury. I do not accept that proposition. Ramsay Health bear an evidentiary burden of adducing evidence where they seek to assert that Ms Clarke's condition was not caused by the compensable injury, however, once that burden is discharged it remains on Ms Clarke to persuade the court on the balance of probabilities that the medical expenses claimed are connected in the Napier sense to the compensable injury.
70 The arbitrator found, in essence, that Ms Clarke had recovered from the compensable injury, and she had not satisfied him as to the cause of the chronic back pain leading to the need for the psychiatric expenses and therefore Ms Clarke had failed to discharge the burden upon her.
71 The arbitrator did not apply the wrong test and I dismiss ground 2.
Appeal Ground 1
72 As to Ground 1, Mr Stewart stated:
So as ground 1 relates to miscomprehension of the injury if you will all I will say to at this point in time sir is that if indeed when providing reasons for decision in relation to the matter there is some varying upon his application of Napier to the evidence assessing what the injury was in the circumstances then we would say that it would be correct to keep ground 1 in place at this point in time.
73 Insofar as the particulars of this ground are concerned, the particulars appear at page 4 of this judgment.
74 Particulars (i) and (iii) are not contentious.
75 Insofar as particular (ii) is concerned, it is quite true that Ms Clarke claims as a result of the physical injury referred to in particular (i) that she suffered psychological injury, however, that is not what the arbitrator found. The arbitrator found that Ms Clarke had, in essence, recovered from the physical injury (the compensable injury occasion on 13 September 2009) and the chronic lower back pain now being suffered was not a result of that compensable injury.
76 The arbitrator found that he was not able to find what caused the chronic back pain [160], and that it was the chronic back pain that was causing the depression and thus the need for the medical and treatment expenses. This was a finding that was open to the arbitrator on the evidence. This does not demonstrate any error of law on behalf of the arbitrator and whilst I accept that grounds 1 and 2 of the appeal are interwoven, there is no error demonstrated insofar as ground 1 is concerned.
77 Insofar as the medical evidence relied upon as establishing that the compensable injury was the material cause of the depression, the arbitrator found the medical practitioners' conclusions in this regard was based on them accepting the proposition that the chronicity of the lower back pain was materially caused by the compensable injury.
78 The arbitrator was not persuaded that this primary fact was established by the evidence before him.
79 The forensic psychiatrist's (Dr Terace) report of 2 May 2016 stated:
The alleged workplace injury [13 September 2009] is only causally relevant if the experts in physical medicine consider that any current pain, physical impairment or disability is significant and materially caused by the events of that date. …
The alleged workplace injury of 13 September 2009 may only be argued to have significantly contributed to the causation and maintenance of the present psychiatric condition if Ms Clarke's physical injury persists and if the later remains a product of the events of the 13 September 2009 this being a matter for the expertise of the experts in physical medicine.
80 The physical medical evidence expert, Dr Vaughan, a consultant neurosurgeon, stated in his report of 7 April 2016 that the:
Injury of 13 September 2009 in the absence of any other factors attributed to the current complainant of symptoms in her the lower back.
81 However, his report makes it clear that he relied on the veracity of the history given to him by Ms Clarke that she complained of back pain from the injury that occurred on 13 September 2009 onwards.
82 Mr Goodbourn the consultant psychiatrist, report of 4 October 2011 refers to the background of chronic pain and whilst his report of 14 July 2016 stated:
… so in summary the original injury ,the way she feels she was treated by her employer and the subsequent retraining have all contributed to problems with anxiety, low mood and low self-esteem.
- That conclusion was considered by the arbitrator in the context of the arbitrator's earlier findings that he was not satisfied that the back pain which led to the depression and therefore the claimed expenses was connected to the compensable injury. This was a finding open to the arbitrator in light of the evidence. A contrary finding could have been reached, however, the finding was open on the evidence.
83 The arbitrator specifically commented on the absence of evidence about the onset of the August 2011 back pain which occurred after he found that there had been full recovery from the compensable injury. Therefore the primary fact relied upon by the medical practitioners in reaching the conclusion that the chronic back pain leading to the depression was contributed to by the compensable injury, was not proven by evidence before the arbitrator.
84 The primary facts on which the medical opinions were based must be established by admissible evidence for those opinions to be of any weight Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705, 743; HG v The Queen (1999) 197 CLR 414.
85 The difficulty for Ms Clarke was that the arbitrator was not satisfied, due to the lack of evidence before him, that the back pain being experienced by her was connected to the compensable injury. That was a finding open to the arbitrator.
86 This is not a case of the arbitrator making an error of law on but, rather, a failing on Ms Clarke's behalf to establish that the medical and treatment expenses she incurred for the psychological condition which she says was caused by the chronic lower back pain was connected in the Napier sense to the compensable injury.
87 Ground 2 is dismissed.
88 Ground 1 involves a question of law, ground 2 is so interlocked with ground 1 that I would grant leave to appeal on both grounds. For the reasons outlined above I dismiss both grounds and the appeal.
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