Coates Hire Operations Pty Ltd v Geddes - [2008] NSWWCCPD 120

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Coates Hire Operations Pty Ltd v Geddes [2008] NSWWCCPD 120
APPELLANT:		Coates Hire Operations Pty Ltd
RESPONDENT:		Todd Geddes
INSURER:		QBE Workers Compensation (NSW) Limited as Agent for the NSW WorkCover Scheme
FILE NUMBER:		WCC1858-08
DATE OF ARBITRATOR’S DECISION:		30 May 2008
DATE OF APPEAL DECISION:		21 October 2008
SUBJECT MATTER OF DECISION:		Injury; neck complaints arising after back injury; sufficiency of evidence for finding of causal connection by Arbitrator; medical opinion; Makita (Australia) Pty Limited v Sproules (2001) 52 NSWLR 705
PRESIDENTIAL MEMBER:		Acting Deputy President Anthony Candy
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sparke Helmore, Lawyers
Respondent:	Bullivants Legal
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 30 May 2008 is revoked and the following decision is made in its place: “(1) The permanent impairment dispute is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of permanent impairment in respect of the lumbar spine, the date of injury being 10 October 2002. Each party is to bear its or his own costs of the appeal.

BACKGROUND TO THE APPEAL

Todd Geddes (‘the worker’) was employed by Coates Hire Operations Pty Ltd (‘the employer’) at its Muswellbrook premises as an assistant manager and suffered injury to his low back on 10 October 2002 on two occasions, the first when he was lifting a jackhammer and felt a slight twinge and then when he was lifting and twisting while carrying a pump. He was away from work for two and a half working days, resuming on 15 October 2002. This appeal concerns neck pain which came on four years later.
A claim for workers compensation was made to QBE Workers Compensation (NSW) Limited (‘the insurer’) which was accepted and compensation was paid.
The worker on the day of the injury consulted a general practitioner in Muswellbrook, Dr Rikard-Bell, who certified an acute back spasm. After this, however, the worker consulted a general practitioner, Dr Ford, who practised in Singleton where the worker then lived. The worker attended Dr Ford for treatment although he continued working. The latest certificate of Dr Ford is of 21 April 2005 and refers to the diagnosis as being: “Thoracic lumbar spine dysfunction”.
Dr Ford wrote to the insurer on 21 July 2004. He advised that continued physiotherapy and strengthening treatment would only have marginal benefit. The worker had been complaining of his condition for at least two and a half years (this period appears incorrect) and had rehabilitation both from Hunter Rehabilitation as well as a rehabilitation program instigated by Dr Russo but neither had made a significant difference to his complaint. The driving of a 2-tonne truck was identified as an aggravation of the worker’s thoraco-lumbar back pain.
On 18 August 2005 the insurer wrote to the worker advising that it was unable to offer a settlement of a claims made under sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). This was done relying upon reports of Dr Ostinga an orthopaedic surgeon, dated 2 August 2005. The letter making the relevant claim is not in evidence, although the worker’s solicitors did write to the insurer on 18 May 2005 seeking certain documents in accordance with workers compensation legislation.
On 1 November 2005 the insurer wrote to the worker advising that liability for his claim had been denied for the following reason(s):
“In our opinion the work injury that you allege to have received, has not caused you any incapacity for work.
Our opinion is based on medical evidence from Dr Kim Ostinga.”
On 17 July 2006 the worker’s solicitors wrote to the insurer enclosing a report of Dr Thomson of 6 October 2005. A claim for 6% permanent impairment was made in the sum of $7,500.00, together with reasonable and necessary medical and treatment expenses. Dr Thomson’s report is not in evidence.
On 9 August 2007 the worker’s solicitors wrote to the insurer making a claim for 12% permanent impairment, namely $17,050.00, together with section 60 expenses based on a report dated 1 August 2007 of Dr Max Ellis, a surgeon, who had assessed permanent impairment in respect of the worker’s neck as well as his lumbo-sacral spine. Dr Ellis took a history of neck pain commencing in the preceding eight months.
On 31 January 2008 the insurer wrote to the worker’s solicitors maintaining its offer of 0% whole person impairment.
On 24 January 2008 the worker’s solicitors again wrote to the insurer making a claim in the sum of $15,500.00 representing 12% permanent whole person impairment, together with $4,000.00 pursuant to section 67 for pain and suffering which they had neglected to claim earlier. The insurer’s response was as before.
Accordingly, an ‘Application to Resolve a Dispute’ was filed on 13 March 2008 in the Workers Compensation Commission (‘the Commission’). A Reply was lodged on behalf of the employer on 3 April 2008 and the matter was referred to a Commission Arbitrator who held an arbitration conference/hearing on 29 May 2008. The Arbitrator found that the symptoms of pain and injury to the worker’s neck were causally connected to the original back injury of 10 October 2002. It is from this decision that the employer now seeks leave to appeal.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 30 May 2008 records the Arbitrator’s orders as follows:
“1.That the Applicant sustained injury to his cervical spine arising out of and in the course of his employment with the Respondent and his employment with the Respondent was a substantial contributing factor to the injury.
2.The relevant date of injury is 10 October 2002.
3.The permanent impairment dispute is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of permanent impairment in respect to the lumbar and cervical spines. The date of injury being 10 October 2002.”

ISSUES IN DISPUTE

The issues in dispute in this appeal are whether the Arbitrator erred in finding that the worker suffered injury to his cervical spine in the course of his employment.

ON THE PAPERS REVIEW

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

LEAVE

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The worker concedes that the monetary thresholds specified in section 352(2) have been satisfied and it appears to me that this is the case. No submissions were made as to the effect of section 352(8) of the 1998 Act (no appeals from a decision of an interlocutory nature). This is in conformity with the decision of Roche DP in P&O Ports Limited v Hawkins [2007] NSWWCCPD 87 that a final decision which determines the parties’ rights on issues such as worker, injury or substantial contributing factor, inter alia, is not interlocutory although medical disputes remain to be determined. The decision of the Deputy President has been followed in many subsequent cases and I propose to do likewise. There has been a finding of injury to the worker’s neck in this case which is final unless set aside on appeal although there has been no determination by an AMS as to the existence or extent of permanent impairment referable to such injury.
Accordingly, leave to appeal is granted.

REVIEW

The nature of a review under section 352(5) of the 1998 Act has been considered by the Court of Appeal in a number of decisions. Roche DP has summarised the effects of these in Ranvet Pty Ltd v Vasileski [2008] NSWWCCPD 81. He drew the following conclusions at [55] from the authorities which he had earlier considered:
“(a)a review is not a hearing de novo (per Clarke JA in Atamian [Cockatoo Dockyard Pty Ltd v Atamian (1995) 12 NSWCCR 114] at 124 and Gleeson CJ (Handley JA agreeing) in Litynski v Albion Steel Pty Limited (1994) 10 NSWCCR 287 at 292F);
(b)a party seeking a review under section 352 must set out the grounds on which the Presidential member will be asked to review the Arbitrator’s decision (per Clarke JA in Davies [State Rail Authority of NSW v Davies (1995) 11 NSWCCR 314] at 323A), and must demonstrate ‘some proper basis for disturbing the decision under challenge’ (per Kirby P in Watson [ Watson v Hanimex Colour Services Pty Ltd (1992) 8 NSWCCR 190] at 205D) before a Presidential member will disturb an order made by an Arbitrator;
(c)a review on the merits is a different process to an appeal and the matters which may be considered and the manner in which they are considered are somewhat wider and a matter for the discretion of the Presidential member (per Bryson JA in Zheng [Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34; (2006) 4 DDCR 358] at [38]), but the powers on review are not so wide as to treat the primary decision as if it did not exist (per Meagher JA in Samuels [Australian Gas Light Co v Samuels (1993) 9NSWCCR 616] at 625E);
(d)a Presidential member conducting a review under section 352 must decide whether the original decision is wrong, or must decide what is the true and correct view (per Spigelman CJ in Chemler [State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287] at [30]);
(e)it is not open on review for a Presidential member to disregard an Arbitrator’s credit-based findings, where those findings are based on oral evidence (per Handley and Meagher JJA in Samuels; Clarke JA (Meagher and Handley JJA agreeing) in Davies at 322D and Clarke JA in Atamian at 127D), but such findings are not immune from challenge (Fox [Fox v Percy [2003] HCA 22; (2003) 214 CLR 118] at [28] and [29] and Whisprun [Whisprun Pty Ltd v Dixon [2003] HCA 48 ;(2003) 200 ALR 447; 77 ALJR 1598] at [98] and [99]);
(f)subject to the nature of the grounds relied on by the party seeking a review and subject to the question of credit based findings where oral evidence has been given, it is open to a Presidential member to form his or her opinion on the questions submitted for consideration (per Clarke JA (Meagher and Handley JJA agreeing) in Davies at 322D; Clarke JA in Atamian at 127G);
(g)if the Presidential member considers that the Arbitrator’s decision is correct, the Arbitrator’s decision will be confirmed (per Clarke JA in Atamian at 124 and Spigelman CJ in Chemler at [30]);
(h)if the Presidential member considers that the decision is ‘wrong’ (per Spigelman CJ in Chemler at [30]), the decision will be revoked and will either be re-determined by the Presidential member or remitted for re-determination by the same or a different Arbitrator, in the Presidential member’s discretion according to the circumstances of the case (per Santow JA in Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344 at [28]), and
(i)if the decision is ‘marred by one or more errors’ the Presidential member will, depending on the nature of the error, and his or her view of what the correct decision should be, either confirm or revoke the order made and make an appropriate order in its place (per Clarke JA in Atamian at 124).”
I gratefully adopt the above summary by the Deputy President.

EVIDENCE

A short undated statement of the worker is in evidence. In this he says he was aged 37. Since he was born on 28 December 1969 this points to the statement having been obtained in late 2006 or 2007. He describes his work duties and says this about his symptoms:
“11.The pain in my lower back is constant and ongoing especially when I am required to bend down or twisting, sitting down or standing for long periods.”
The worker makes no reference to neck symptoms. The practice of relying on undated statements is unsatisfactory for obvious reasons.
Dr Ellis, on whose report the present claim has been made, saw the worker at the request of his solicitors on 27 July 2007. He took a history that the worker had been referred to a specialist, Dr Rousseou [sic-Russo] of Newcastle, who administered two injections into the worker’s back, the first giving relief for about six months and the second being less satisfactory. There is no report from Dr Russo in evidence. Dr Ellis took a history that neck pain had commenced in the preceding eight months (that is, since late 2006) and was aggravated by a sustained position [sic], sitting at a computer and long distance driving. Dr Ellis saw MRI scans of the thoraco-lumbar spine of March 2003 showing no significant radiological abnormality and the CT scan of the lumbar spine of February 2003, showing no radiological abnormality. In relation to the neck, Dr Ellis says this: “It is not uncommon for lower cervical disc strain to arise secondarily to a low back injury as a result of muscle spasm, loss of alignment and altered weight-bearing at the lower level”. As I have earlier noted Dr Ellis assessed permanent impairment in respect of both back and neck.
An occupational physician, Dr Furey, had seen the worker on 19 December 2002 in Newcastle. His report is addressed to the employer. Dr Furey’s opinion was that there was no doubt that the worker had some irritation of his lumbar disc and his zygapophyseal joints. Dr Furey suggested radiological investigations which were carried out the following year.
Dr Ostinga, an orthopaedic surgeon, gave the insurer two reports dated 2 August 2005. At that time the worker said he was not having any treatment. He described aching in his back increasing during the day and occasionally spasm into his buttocks which he described as a short, sharp pain. Dr Ostinga reviewed the CT and MRI scans which he thought were within normal limits, although moderate degenerative change in the lower lumbar apophyseal joints was shown particularly at L4/5. Dr Ostinga said he found no sign of psoas irritation which had been described by Dr Russo but the fact that the discs were normal on MRI did not exclude a minor disc lesion. He thought that myofascial pain as proposed by Dr Kerridge, a Newcastle orthopaedic surgeon, was unlikely to cause symptoms over such a long period of time. There is no report from Dr Kerridge in evidence.
Dr Ostinga found that the injury had resulted in impairment because the worker had had continuous symptoms since the time of the accident and no evidence of problems prior. He thought this impairment was permanent on the grounds that he suffered intradiscal lesion although mild. In a separate report Dr Ostinga assessed the level of whole person impairment at 0% and adds this comment:
“Permanent Impairment ratings take symptoms into account, but the percentage impairment is not a direct measure of disability arising out of symptoms. Impairment is a deviation from normality in a body part or organ system and its functioning. Hence impairment is a medical issue assessed by medical means. A finding of zero percent whole person impairment does not indicate that there was no injury or that there are no continuing symptoms.”
Dr Ostinga gave a supplementary report dated 25 October 2005 in which he expressed the opinion that the worker was fit to resume his pre-injury duties, although he should exercise care if asked to do heavy lifting.
It is difficult to see on a fair reading of these reports of Dr Ostinga that they gave any basis for the declinature of liability by the insurer in the terms used in the letter of 1 November 2005.
Dr Ostinga examined the worker again on 22 May 2008. The worker told him that he had had some chiropractic treatment to his neck and back which he had paid for himself. This he felt had “helped a bit”. The worker said his neck had started to ache “out of the blue”. Dr Ostinga noted that Dr Ellis did not seem to mention finding loss of alignment, altered weight bearing or muscle spasm when he examined the worker. On these matters Dr Ellis relied for his opinion that the neck condition was causally related to the back injury. Dr Ostinga was of the view that Dr Ellis’ opinion would not generally be held and he thought that, in his experience, a traumatic injury to the lumbar spine was most unlikely to result in a cervical condition. Dr Ostinga made no assessment of permanent impairment referable to the worker’s neck.

THE ARBITRATOR’S REASONS

The reasons given by the Arbitrator are relatively short and I will set them out in full. The relevant parts are as follows:
“The claim made by Mr Geddes that he has suffered a neck injury is not based on a claim that he suffered an injury to his neck on 10 October 2002 but that, as a result of the injury to his back on that date and the persistent symptoms of pain in his back, he has since late 2006, early 2007 begun to experience pain in his neck.
My task is to determine whether there is sufficient evidence to support a causal connection between the symptoms – injury to his neck and the original back injury on 10 October 2002.
There is nothing before me which impugns Mr Geddes’ credit, and so I accept his complaints to Dr Ellis. There is no evidence before me of any other incident which might have contributed to the neck symptoms. I accept the history in this regard. Dr Ellis provides support for the possibility of a connection on the basis of loss of alignment, altered weight bearing and muscle spasm between the back injury and the development of the neck injury.
I note Dr Ostinga’s opinion that a traumatic injury to the lumbar spine is most unlikely to result in a cervical condition. However, he does not categorically exclude the possibility.
I note the line of authority in EMI Australia Limited v Bes (1970) Workers Compensation Reports 114, Ramsay v Watson (1961) High Court of Australia 65 in which the principle has been stated that;
If medical science is prepared to say that it is possible, then a judge is able to conclude that it is probable.
This principle has been quoted with approval in the Commission in cases such as WorkCover Authority of New South Wales v Bowie Couriers Pty Limited [2006] New South Wales Workers Compensation Commission Presidential Decision 241 and Lasermax Engineering Pty Limited v QBE Insurance (Australia) Limited and two others (2005) New South Wales – I think that’s actually a Court of Appeal decision, I’m sorry – 66.
Accordingly, I am satisfied on the balance of probabilities that the symptoms of pain and injury to Mr Geddes’ neck are causally connected to the original back injury on 10 October 2002. I find, therefore, that Mr Geddes has sustained a work-related injury to his neck and the date of injury is 10 October 2002.”

DISCUSSION

The appeal by the employer initially relied on no fewer than fourteen separate grounds; however, one of these relating to the alleged failure of the Arbitrator to identify a date of injury in relation to the neck is not pressed. These may, I think, fairly be condensed to two grounds, namely:
(1)that the Arbitrator failed to consider whether Dr Ellis’ opinion was supported by evidence; and
(2)that the Arbitrator erroneously made a finding of injury to the worker’s cervical spine which was causally related to the back injury on 10 October 2002.

Taking Dr Ellis’ opinion first, he found neck pain of eight months duration aggravated by certain activities. There were no investigations of the worker’s neck carried out nor was there any suggestion of treatment to it, although I note that Dr Ostinga in 2008 refers to chiropractic treatment having been carried out to both neck and back. Dr Ellis found that neck movements were restricted by one-third to the left and one-half to the right. He did not however explicitly express the opinion that the impairment of the neck was related to the injury of 10 October 2002. Instead, he made the general comment which is set out in the Arbitrator’s reasons and at [24]. The difficulty with this observation is that Dr Ellis has not recorded specifically finding any of the matters on which he relied in making this observation. This point was made by Dr Ostinga in his report of 22 May 2008 and was the subject of submissions to the Arbitrator. The worker’s counsel referred to findings by Dr Thomson, however, as I have already noted, his reports were not in evidence, although they were obviously available to counsel.
The employer relies on the decision of the Court of Appeal in Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’) as establishing that the facts on which an expert opinion is based must be proved for the opinion to have any value.
There is nothing novel about this proposition. In Paric v John Holland (Constructions) PtyLtd (1985) 59 ALJR 844 the High Court in a joint judgment said the following at 846:
“It is trite law that for an expert medical opinion to be of any value the facts on which it is based must be proved by admissible evidence: Ramsay v Watson (1961) 108 CLR 642.”
The worker points to there being no evidence of any other injury to the worker’s neck. As I have earlier noted, the worker in his statements says nothing about his neck at all. The worker seeks to distinguish Makita and says that it has no application in this matter.
I consider that Dr Ellis’ opinion as to the causation of the worker’s neck condition cannot be supported. His opinion was, I consider, without a demonstrable factual basis. He has not recorded any findings on examination of the worker which would be necessary to found his opinion and those matters are not otherwise the subject of any evidence. My decision as to Dr Ellis’ opinion is sufficient to dispose of the appeal however, given the extensive submissions which have been made by the parties, I will consider these next.
I turn to the authorities relied on by the Arbitrator. EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 (‘Bes’) was a decision of the Court of Appeal (Herron CJ, Asprey JA and Holmes J). In that case, the claim in respect of a worker who died in a motor car accident 12 days after suffering a head injury succeeded in the Workers’ Compensation Commission when the trial judge accepted that the car accident was caused by syncope largely as the result of the intake of large doses of analgesic following the head injury. Although the Arbitrator does not refer to a particular passage, it seems to me that the passage of particular relevance appears at 242 being part of the judgment of the Chief Justice. It is as follows:
“Much the same thesis is to be found in Ramsay v Watson in the High Court, ([1961] NSWR p619; 108 CLR p642) and I particularly refer to the passage in the joint judgment of their Honours at the foot of 108 CLR at p645. It seems to me that that bears out what I have concluded is the correct principle to apply, namely, that it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical evidence states with certainty the very issue on which the judge himself has to try.” (Emphasis added.)
His Honour in his reasons referred to the High Court decision in St George Club Ltd v Hines (1961-62) 35 ALJR 106. That Court in a joint judgment said this at 107:
“In an action at law a plaintiff does not prove his case merely by showing that it was possible that his injury was caused by the defendant’s default. Bonnington Casting Ltd v Wardlaw ((1956) AC 613); nor does proof of default followed by injury show that the default caused the injury, for as Viscount Simonds said in Quinn v Cameron and Roberton Ltd ((1958) AC 9, at p23), ‘ “Post hoc ergo propter hoc” is a fallacy in respect of a breach of a statutory regulation as it is in respect of any other event in life.’ Similar principles apply to a claim for compensation where it is necessary to show that the employment contributed to the injury. In this case, however, we consider that there was evidence which, if accepted, could be regarded as making it appear that on the balance of probabilities the heavy lifting contributed to the happening of an occlusion which resulted in the worker’s death. The correctness of the medical evidence supporting this conclusion and the inference that ought to be drawn from the evidence as a whole were questions for the Commission but they are not questions for us.” (Emphasis added.)
The second case relied on by the Arbitrator is Ramsay v Watson (1961) 108 CLR 642. It was an appeal from the decision of the Full Court of the Supreme Court of NSW dismissing an appeal from the verdict of a jury in a claim for personal injuries. The relevant passages in the joint judgment of the High Court appear to be on pages 644 and 645. At 644 the Court said:
“The only possible conclusion from the mass of evidence is that there was material on which the jury might find as they did; and their verdict was not obviously unreasonable or perverse.”
At 645 the Court said this:
“A qualified medical practitioner may, as an expert, express his opinion as to the nature and cause, or probable cause of an ailment. But it is for the jury to weigh and determine the probabilities. In doing so they may be assisted by the medical evidence. But they are not simply to transfer their task to the witnesses. They must ask themselves ‘Are we on the whole of the evidence satisfied on a balance of probabilities of the fact?’.”
As Gleeson CJ pointed out in Swain v Waverley Municipal Council (2005) 220 CLR 517 there are different considerations involved in appellate review according to whether the decision-maker is a judge or jury. There are significant limitations placed on an appellate tribunal where the appeal is from a jury verdict. The reliance placed by the Arbitrator on what was said by appellate courts in relation to a jury’s entitlement to make findings which will not be open to appeal is, I think, misplaced.
The third case relied on by the Arbitrator is WorkCover Authority of NSW v Bowie Couriers Pty Limited [2006] NSWWCCPD 241. That was a decision of Moore ADP and the relevant passages appear at [113], [114] and [115]. At [114] the Acting Deputy President considered what had been said by Herron CJ in Bes which I have set out at [38]. At [113] the Acting Deputy President says the following:
“A finding contrary to the weight of evidence, even a perverse finding, does not necessarily constitute an error of law. Where there is evidence upon which a primary finding of fact can be based, if that evidence is accepted it is not open to challenge even if it could be described as perverse. (See Crown Glass & Aluminium Pty Limited v Ibrahim [2005] NSWCA 195).”
It should be noted that the appeal in Ibrahim to the Court of Appeal from the decision of Walker J was limited to a question of law. That is not the case here. At [115] the Acting Deputy President added:
“In other words, in the present case, lay evidence combined with conflicting medical evidence was sufficient to ground the Arbitrator’s finding of fact that employment was not a substantial contributing factor to the Worker’s injury.” (Emphasis Added.)
The last case relied on by the Arbitrator is Lasermax Engineering Pty Limited v QBE Insurance (Australia) Limited and 2 Ors [2005] NSWCA 66 (‘Lasermax’). This was a claim under an insurance policy where the question was whether damage to insured equipment was “directly caused” by a fire within the meaning of the policy. Although not identified by the Arbitrator the relevant passage appears to be [108] to [110] in the judgment of McColl JA. It is as follows:
“The conclusion that ‘directly caused by …’ required identification of the proximate cause leads to the second issue in the appeal: whether on the proper construction of the Policy and on the agreed and assumed facts, the damage that Laser was ‘directly caused … by fire’.
The Court applies common sense standards in determining what is the proximate cause. The question whether an event is one to which the policy responds requires ‘a consideration of what the words of the policy convey, as a matter of contemporary language read in the context of the whole policy, to a reasonable non-expert in [Australia]’: Australian Casualty Co Limited v Federico at 525 per Wilson, Deane and Dawson JJ.
‘Causation is to be understood as the man in the street, and not as either scientist or the metaphysician, would understand it’: per Lord Wright in Yorkshire Dale Steamship Co Limited v Minister of War Transports [1942] AC 691 at 706 …”
It may be that the Arbitrator relied also on the passage at [102] which is as follows:
“The respondent argued that the primary judge was looking to the last cause, the electrical surge, as being the ultimate cause. That submission exposes the error into which the primary judge fell. Applying the Policy wording, his Honour was required to look to the cause which was proximate in efficiency rather than in time.”
It is difficult to know what principle the Arbitrator extracted from Lasermax. It may be that she was seeking to identify the cause of the worker’s neck pain which was proximate in efficiency rather than time given that there was a four year delay in any complaint being made regarding it.
The worker relies on a number of authorities in supporting the decision of the Arbitrator including House v The King (1936) 55 CLR 499 and Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621. Both of those cases dealt with appeals in respect of the exercise of a discretion.
McColl JA in Southwest Sydney Area Health Service v Edmonds [2007] NSWCA 16 described at [133] the view that the relative weight and relevance of expert evidence could only be disturbed on House v The King principles as an “over-generalisation”. Her Honour went on to say:
“However, the question whether expert evidence relied on by a party is probative of a matter in issue is determined in accordance with legal principle and is susceptible to review on appeal in accordance with the principles which govern appellate review of finding of facts: see generally Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.”
The authorities relied on in relation to the exercise of a discretion are not, in my opinion, relevant to the question whether or not the burden of proof of a particular matter has been satisfied.
The worker relies on the decision of the High Court in Commissioner for GovernmentTransport v Adamcik (1961) 106 CLR 292 particularly the judgment of Windeyer J which is at 303 and following. That was an appeal from the Full Court of the Supreme Court of New South Wales against its refusal to set aside a jury verdict in favour of a widow under the Compensation to Relatives Act. For reasons already given I do not think that anything said in that case advances the worker’s argument.
Reliance is also placed on MLA Holdings Pty Ltd v Smith and anor (1996) 13 NSWCCR 224. In that matter the Court of Appeal (Sheller JA with whom Handley and Beazley JJA agreed) dismissed an appeal from Burke J who had set aside on review the decision of a Commissioner. There is no reference in that decision to Bes however Sheller JA said the following at 231:
“To adapt the language of Rich A-CJ in Adelaide Stevedoring v Forst (1940) 64 CLR 538 at 563, from the stand point of the presumptive influence which the sequence of events would naturally inspire in the mind of any commonsense person uninstructed in pathology, the conclusion would be that the worker’s incapacity after October 1990 was contributed to by the incident in that month.”
I am unable to see that this decision assists the worker’s case in any way. There is nothing in the sequence of events in this case which supports the worker’s claim in respect of his neck. Forst was a case of a worker dying from a coronary thrombosis immediately after physical exertion at work. His widow was held to be entitled to workers compensation for his death.
I have, when citing the authorities referred to by the Arbitrator, emphasised a common thread, namely, that an expert opinion that something is possible may be accepted if there is sufficient support in the evidence for that conclusion. I think that the Arbitrator stated the principle too widely when she said “If medical science is prepared to say it is a possible view, then a judge is able to conclude that it is probable”. As Asprey JA said in Bes at 243:
“Reliance for the purpose of drawing that inference may be placed by the Tribunal on the evidence as a whole and not confined to the medical evidence only (see St George Club Ltd v Hines [1961] NSWR 402; 78 WN (NSW) 701, affirmed by (1961) 35 ALJR 106), except where all the medical evidence agrees that the matter sought to be relied on must be excluded from consideration as lacking justification for the drawing of the inference.”
In this case there is no evidence supporting the worker’s claim in respect of his neck apart from the report of Dr Ellis. The cases relied upon by the Arbitrator do not establish that the expression by a medical expert of a possible connection alone is sufficient to enable a finding of connection to be made. Such medical opinion may be likened to one strand of a cable which alone is not strong enough but which when joined with other strands becomes sufficient. The reference to strands in a cable appears in the decision of Spigelman CJ in Seltsam v McGuiness (2000) 49 NSWLR 262 where his Honour said at [91]:
“Causation, like any other fact can be established by a process of inference which combines primary facts like ‘strands in a cable’ rather than ‘links in a chain’, to use Wigmore’s simile: Wigmore on Evidence, 3^rd ed (1981) Vol 9 at 412-444 [2497] referred to in Shepherd v The Queen (1990) 170 CLR 573 at 579.”
In the paragraph before this his Honour expressed the opinion that proof on the balance of probabilities or beyond reasonable doubt may be established on circumstantial evidence. He then referred to the metaphor used by Lord Cairns in Belhaven and Stenton Peerage (1875) 1 App Cas 278 at 279, namely that a number of converging rays of light, each of which is insufficient to illuminate a dark corner, together may do so.
Earlier in his judgment his Honour said the following at [83] and [84]:
“The law in Australia is, in my opinion, as stated by Glass JA in this Court in Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197:
‘… The issue of causation involves a question of fact upon which opinion evidence, providing it is expert, is receivable. But a finding of causal connection may be open without any medical evidence at all to support it: Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465, or when the expert evidence does not rise above the opinion that a causal connection is possible: EMI (Australia) Ltd v Bes [1970] 2 NSWR 238; appeal dismissed (1970) 44 ALJR 360n. The evidence will be sufficient if, but only if, the materials offered justify an inference of probable connection. This is the only principle of law. Whether its requirements are met depends on the evaluation of the evidence.’
It is often difficult to distinguish between permissible inference and conjecture. Characterisation of a reasoning process as one or the other occurs on a continuum in which there is no bright line of division. Nevertheless, the distinction exists.”
In this case there was no other evidence to be added to the opinion of Dr Ellis in order to support an inference of causation being drawn. The Court of Appeal considered the question of causation in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (‘Bates’). At 463-4 Kirby P (as his Honour then was) said the following:
“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 earlier 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.”
In Bates there was a period of 11 years between the initial injury and a worker’s death by myocardial infarction. Nonetheless because of the undisputed evidence pointing to a causal relationship it was held that the trial judge had not erred in finding that there was such connection. I observe that the closer two events are in time the more easily may a connection between them be inferred. However the fact that events are separated by a long period of time does not mean that a later event may not be found to have resulted from an earlier event if there is sufficient evidence to enable a connection to be made.
The worker in this case must be establish on the balance of probabilities that a connection is to be made between the back injury and neck symptoms approximately four years later. I do not think that there is sufficient evidence to establish that. The only evidence is the opinion of Dr Ellis. That opinion would not of itself be sufficient to support a finding in favour of the worker even if it were entitled to more weight than I believe it is. The inference which the Arbitrator drew as to the worker’s neck complains being causally related to his back injury was not, in my opinion open.

DECISION

For the reasons given, the decision of the Arbitrator dated 13 May 2008 is revoked and the following decision is made in its place:
“(1)The permanent impairment dispute is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of permanent impairment in respect of the lumbar spine, the date of injury being 10 October 2002.

COSTS

The Arbitrator made no order as to the costs of the arbitration and since that arbitration was, it appears, solely held for the purpose of determining whether the worker’s neck ought be included in the referral to the AMS, I think it is appropriate that there be no costs awarded to the worker in respect of that arbitration.

In respect of the appeal, I think that the appropriate order is that each party is to bear its or his own costs of the appeal.

Anthony Candy
Acting Deputy President
21 October 2008

I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CAND, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE