Country Energy v Thornberry

[2005] NSWWCCPD 133

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Country Energy v Thornberry [2005] NSW WCC PD 133

APPELLANT:  Country Energy

RESPONDENT:  Peter Thornberry

INSURER:• GIO Workers Compensation (NSW) Ltd (on risk from 1 July 1996 to 30 June 2001)

• QBE Workers Compensation (NSW) Ltd (on risk from 1 July 2001)

FILE NUMBER:  WCC7371-04

DATE OF ARBITRATOR’S DECISION:          7 September 2004

DATE OF APPEAL DECISION:  14 November 2005

SUBJECT MATTER OF DECISION:                Weighing of evidence as to causation

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant: Turks Legal

Respondent: Whitelaw McDonald Solicitors

ORDERS MADE ON APPEAL:  The decision of the Arbitrator is confirmed.

The Appellant, Country Energy, is to pay Mr Thornberry’s costs in this appeal as agreed or assessed.

BACKGROUND TO THE APPEAL

1. On 1 October 2004, Country Energy sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an Arbitrator dated 7 September 2004.

1. The Respondent to the Appeal is Peter Thornberry. Mr Thornberry was born on 1 April 1956 and is aged 49. He was employed as a linesman by Peel Cunningham County Council - the predecessor of Peel Cunningham County Council Electricity, North Power, and Country Energy - from 1 July 1987. During the course of his work, he has been required to wear heavy gloves to protect his hands. This, however, makes manual work strenuous and, in 1990, he consulted his general practitioner when he began experiencing difficulty in straightening his fingers. His doctor referred Mr Thornberry to a specialist in Tamworth, Dr Chris Carmody, who diagnosed Dupuytren’s contracture. On 7 December 1990, Dr Carmody operated on Mr Thornberry’s right hand ring finger. Mr Thornberry was off work for six weeks and then returned to work on normal duties. In 2002, he was again referred to Dr Carmody who performed the same operation on Mr Thornberry’s right hand ring finger. This surgery was less successful and, on 6 January 2004, he had further surgery performed by Dr Stephen Kemp in Newcastle. Mr Thornberry was off work following the surgery until 5 April 2004, after which he again returned to normal duties.

1. On 21 November 2003, Mr Thornberry gave notice of injury to his right hand to Country Energy and lodged a claim for workers compensation. On 9 December 2003, QBE Workers Compensation (NSW) Ltd (“QBE”) provisionally accepted liability for medical expenses only, but on 5 April 2004, following further investigation, denied liability. On 6 May 2004, Mr Thornberry’s ‘Application to Resolve a Dispute’ was registered by the Commission in respect of his claim for weekly benefits and medical, hospital or related expenses. He subsequently discontinued proceedings against Peel Cunningham County Council (whose insurer was CGU Workers Compensation (NSW) Ltd, on risk from 1 July 1987 to 30 June 1996) but otherwise maintained his proceedings against Country Energy.

1. On 3 August 2004, the Arbitrator conducted a teleconference with the parties. On 30 August 2004, conciliation having proved unsuccessful, she conducted an arbitration hearing, handing down an ex tempore decision at the end of the hearing. On 7 September 2004, the Arbitrator issued her determination, set out below.

THE DECISION UNDER REVIEW

1. The Certificate of Determination dated 7 September 2004 records the Arbitrator’s orders as follows:

“1. That the Respondent pay to the Applicant the sum of $895.63 per week for weekly benefits for the period 5 January 2004 to 5 April 2004 pursuant to section 36 of the Workers Compensation Act 1987.
2. That the Respondent pay the Applicant’s reasonable medical expenses upon presentation of accounts and/or receipts, pursuant to section 60 of the Workers Compensation Act 1987.
3. That the Respondent pay the Applicant’s costs as agreed or assessed. I declare that pursuant to clause 4.10, Schedule 6 of the Workers Compensation (General) Regulation 1995 that this is a complex matter.”

1. The Arbitrator gave an ex tempore decision at the arbitration hearing on 30 August 2004. She found that Mr Thornberry suffers from Dupuytren’s disease and that there is no doubt that this is a chronic genetic condition. However, she noted (arbitration hearing transcript pages 29 to 30):

“Dr Jeffrey and Dr Hopcroft both opine that there was a connection between the disease and the nature of the work the applicant performed, and Dr Hopcroft in his report of 23/6/04 stated that, in fact, this patient’s Dupuytren’s contracture was fairly rapid in its recurrence following surgery by Dr Carmody in 1993. In addition, such gradual progressive fibrosis is often caused by repetitive trauma to the palm of the hand and/or by the nature and conditions of relatively heavy manual work, which was, in fact, the case in this patient’s history. Both believe in this patient’s case that the nature and conditions of his work have caused the Dupuytren’s contracture to occur and advance. Whilst it is more significant in his dominant right hand, he is also developing a contracture of the left hand.

Given that this disease appears to come about as a combination of the factors of employment and genetic disposition, and having regard to the evidence, it seems to me that the applicant has established a causal relationship. Particularly noting the indicators in Professor’s McFarlane’s report, the applicant was 34 when his symptoms first appeared, and submits that this was an important factor as the applicant was not then working in heavy gloves. He began to do this in 1996. He was then about 40 years old, but this is only one of the factors to be looked at. There is evidence that the applicant’s difficulty < --- > bilateral. There is some evidence there is also some problem with his left hand.

The injury is clearly spelled out by Dr Walker, which I’ve already referred to, and this seems to me objective evidence of injury to the hand, albeit that the injury may have been of a repetitive nature caused by ongoing trauma which is consistent with the applicant’s own evidence of working, as he did, while wearing the heavy gloves.

The disease appears within the area of the hand … the injury when it first occurred was at a time when the applicant was still required to wear gloves, albeit the gloves were not as heavy as those he presently wears. Furthermore, there’s a demonstrated school of thought and medical opinion that – both here and overseas – that this disease was and can be caused by substantial and repetitive work.

I therefore find the applicant suffered an injury within the meaning of section 4, being a disease of gradual process which has been accelerated, aggravated, exacerbated [inaudible] deemed the case that section 16 of the Workers Compensation Act 1987 [inaudible] that the employer who last employed the applicant in work to the nature of which the injury is due will be liable for compensation, and the last appropriate employer in those circumstances is Country Energy … The date of incapacity as set out in section 16 is when the applicant had his last operation and became incapacitated for work, that is, 5 January 2004 …”

ISSUES IN DISPUTE

1. The issues in dispute are, first, whether Mr Thornberry’s employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration of the Dupuytren’s disease from which he suffers so as to constitute an ‘injury’ within the meaning of section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’), and if so, second, whether that employment was a substantial contributing factor to the injury as required by section 9A of the 1987 Act. Country Energy contends that the Arbitrator “erred in accepting the medical opinion admitted on behalf of the worker over the medical opinion admitted on behalf of the employer”. The parties’ submissions are discussed more fully below.

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:

“(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.”

1. I have had regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions of the parties, who both state the matter can be dealt with ‘on the papers’. Having considered this material, 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.

1. Neither party sought to adduce fresh evidence.

LEAVE

1. 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. With regard to section 352(2), the amount of compensation at issue, according to Country Energy, is $11,643.19 plus section 60 expenses, which comprises 100% of the amount awarded in the decision appealed against. I am therefore satisfied that the section 352 threshold has been met, and I grant leave to appeal.

EVIDENCE AND SUBMISSIONS

1. The evidence before the Arbitrator comprised the medical reports referred to below, together with a statement from Mr Thornberry dated 10 May 2004. Mr Thornberry also gave oral evidence at the arbitration hearing held in Tamworth. As noted above, Country Energy contends that the Arbitrator “erred in accepting the medical opinion admitted on behalf of the worker over the medical opinion admitted on behalf of the employer”.

1. In his statement dated 10 May 2004, Mr Thornberry said he first commenced work as a linesman for Peel Cunningham County Council on 18 August 1986. Then in 1996, he trained to become a live linesman:

“2. … As part of this I would use heavy insulated gloves in order to stop any electricity coming through. This required me to wear long cotton gloves as a liner inside long moulded rubber gloves which are then covered by heavy duty leather gloves. These gloves are extremely thick and hard to work in and it requires a lot of effort with the hand to perform work. When I am wearing gloves I need to grip such things as wires, screwdrivers, pliers and various other tools requiring repetitive and strenuous use of both hands. The job is very demanding on the hands and often when I work the cotton gloves become drenched in sweat. Often I would work for three or four hours continually with the gloves on during the course of a days work. When not doing live line work I still wear normal leather gloves to protect my hands, these also become sweaty and tend to become hardened.

3. In about 1990 I noticed that I began having increasing difficulties moving my hands and in particular I had difficulties straightening my hands out. The fingers on my hands seemed drawn in and my hand became somewhat more claw like. This was particularly pronounced on the right hand side at this stage. I went to see my GP Doctor Geoff White and was referred to a specialist in Tamworth, Dr Chris Carmody …”

1. I note that Dr Christopher Carmody, Mr Thornberry’s treating Orthopaedic Surgeon until 2002, in his report dated 30 October 1990, recorded that Mr Thornberry told him he had “had a Dupuytren’s Contracture for about two years and it has slowly been getting worse”.

1. Turning to the medical evidence, Country Energy draws attention to what it claims are inconsistencies in the report of Dr John Douglas, Orthopaedic Surgeon, dated 14 January 2004. On page 5 of his report, Dr Douglas stated, “His condition is constitutional. There is no evidence that heavy manual labour causes this condition. He has a strong family history of the condition.” However, on page 6 of his report, Dr Douglas stated “I believe GIO is responsible for the recurrent contracture of the right ring finger which occurred in 2001, leading to the operation on 4/4/04”. He also did not explain how Mr Thornberry’s employment contributed to the onset of the contracture. Country Energy therefore submits that Dr Douglas’ opinion should not be relied on.

1. Mr Thornberry’s solicitor submits that Dr Douglas’ comments on pages 5 and 6 of his report are not contradictory. On page 5 he is dealing with the cause of the condition, while on page 6 he is addressing whether Mr Thornberry’s employment aggravated that condition.

1. With regard to the report provided by Dr Philip Jeffrey, dated 11 June 2003, Country Energy points out that Dr Jeffrey is a general practitioner and not a specialist. While he stated “I feel the combination of the repetitiveness, the heavy work and and the gloves is the only cause of his Dupuytren’s contractures”, he failed to provide any basis for his belief. Mr Thornberry’s solicitors make no specific comment on this.

1. Country Energy submits that neither Dr Alan Hopcroft, Surgeon (reports dated 24 October 2003 and 23 June 2004), nor Dr David Walker, Surgeon (report dated 10 February 2004) has a speciality in hand surgery, neither of them stated any basis for their opinions, and Dr Hopcroft failed to deal with the literature references. Mr Thornberry’s solicitors submit that general surgeons and orthopaedic surgeons are equally as qualified as hand surgeons to comment on such a condition by reason of the surgery they too perform on hands. For example, Dr Carmody, who operated on Mr Thornberry, is an orthopaedic surgeon. (Dr Carmody’s reports dated 30 October 1990, 15 June 1993, 26 August 1997, 27 March 2002, 16 April 2002 and 7 May 2002 were admitted in evidence - all relate to his treating Mr Thornberry.) Mr Thornberry’s solicitors submit that what is more important is the quality of the medical reports and whether the Arbitrator was justified in relying on any of the opinions expressed.

1. Mr Thornberry’s solicitors note that Dr Walker, whose report was commissioned by QBE and includes a full history, while accepting that Dupuytren’s disease has a hereditary factor, postulates that Mr Thornberry’s work as a linesman is “the main cause of the contracture”:

“The necessity to wear these heavy gloves and the irrritation of skin and subcutaneous tissue resulting therefrom I believe is the major factor in this claimant’s condition.”

1. They note that Dr Hopcroft, in his supplementary report dated 23 June 2004, while confirming that Dupuytren’s contracture is a disease of gradual onset, stated his belief that: “the nature and conditions of his work have caused the Dupuytren’s contracture to occur and advance”.

1. Country Energy contrast Dr Hopcroft and Dr Walker with, Dr R Honner, Orthopaedic Surgeon and Specialist in Hand and Upper Limb (report dated 31 March 2004), and Dr Bruce Connolly, Surgeon and Specialist in Hand Surgery (report dated 28 July 2004), who are “both well known hand surgeons” and “clearly of the view that the worker’s condition was not work related”. Copies of Dr Honner’s and Dr Connolly’s curriculum vitaes were admitted in evidence at the arbitration hearing. Mr Thornberry’s solicitors note that Dr Honner never examined Mr Thornberry – his was a review ‘on the papers’, he only had reports from Dr Kemp and Dr Walker, and he did not have a history of the aggravation after the 2002 operation. Indeed, he “appears not to consider the possibility of aggravation at all”.

Mr Thornberry’s solicitors are critical of Dr Connolly’s report because it failed to set out the history taken by Dr Connolly and did not disclose the basis of his reasoning. Dr Connolly referred to an article by Dr Robert McFarlane in the Journal of Hand Surgery of September 1991 but failed to comment on the factors identified in that article with reference to Mr Thornberry’s case. Mr Thornberry’s solicitors point out that the article refers to a number of studies that did make a connection between Dupuytren’s disease and manual work, as the Arbitrator noted. Moreover, in relation to early onset, they state Mr Thornberry was “diagnosed at around the age of 33” at a time when he was working as a linesman, wearing thick gloves and using “pliers, screwdrivers and the like” in gripping wires.

1. Country Energy also notes that Mr Roman’s treating hand surgeon, Dr Stephen Kemp (report dated 24 February 2004), stated:

“I regard Dupuytren’s contracture as primarily a genetically transmitted condition. There is no evidence of which I am aware that use of the hands in any particular activity has an effect on the rate of recurrence of the condition.

There is indeed good evidence to support the contention that manual activity is not relevant to the development of this condition.”

Mr Thornberry’s solicitors comment that Dr Kemp “appears to have taken no history of how the applicant’s injury may have [sic] caused or aggravated”, and does not address the issue of aggravation.

1. Country Energy therefore submits the Arbitrator was wrong to decide that “there’s a demonstrated school of thought and medical opinion that - both here and overseas – that this disease was and can be caused by substantial and repetitive work” (arbitration hearing transcript page 29). It submits the balance of medical opinion indicates that Mr Roman’s condition was not work related, and the Arbitrator therefore erred in finding that the balance of medical opinion favoured Mr Thornberry.

1. Mr Thornberry’s solicitors submit that unlike the medical reports tendered by Country Energy, their reports expressed a reason for reaching their conclusion and based it on the history taken. Those reports provide a rational basis for the Arbitrator reaching her decision. Moreover, she heard oral evidence from Mr Thornberry and had the advantage of seeing the heavy gloves he wears in his work. The Arbitrator’s decision was open to her and should not be disturbed.

DISCUSSION AND FINDINGS

1. The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Mr Thornberry must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSW WCC PD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.

1. As stated above, the issues in dispute are whether Mr Thornberry’s employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration of the Dupuytren’s disease from which he suffers and, if so, whether that contributing factor was substantial. Country Energy’s submission on the appeal goes to the weight accorded to specific evidence by the Arbitrator, particularly the medical evidence. It submits that the Arbitrator erred in finding that the balance of medical evidence favoured Mr Thornberry. Thus, what is challenged is the Arbitrator’s exercise of her discretionary judgement. As Deputy President Fleming stated in Knight v Eyles Nominees Pty Ltd [2004] NSW WCC PD 73 at paragraph 38, to succeed on this ground of appeal “the Appellant must demonstrate that the Arbitrator has failed to exercise her discretion fairly and lawfully”. The Deputy President emphasised at paragraph 40:

“Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully.”

(See also Babylon Property & Cleaning Services Pty Ltd v Hormoz [2005] NSW WCC PD 21, especially at paragraphs 10 to 23.)

1. The evidence suggests Mr Thornberry had developed Dupuytren’s disease in his right hand at least by 1990 when he first consulted his local doctor about this and was referred to an orthopaedic surgeon, Dr Carmody, for specialist advice. In his report dated 30 October 1990, Dr Carmody recorded that Mr Thornberry had told him the condition had slowly been getting worse for about two years. In 1990, Mr Thornberry was aged 34. Thus, it seems fair to conclude that he developed the condition in his early 30s.

1. Mr Thornberry’s father also developed Dupuytren’s disease in his right hand. According to the history taken by Dr Hopcroft (report dated 24 October 2003) and Dr Walker, the father worked as a shearer using vibrating hand-held equipment, often for long periods of time. He did not, however, develop the condition in the left hand. Mr Thornberry’s brother, who apparently worked for many years as a truck driver, has not developed the condition.

1. Mr Thornberry’s evidence is that his work as a linesman involved strenuous, repetitive manual work, much of which was performed wearing heavy protective gloves, causing significant sweating. He is right hand dominant and the condition has particularly affected that hand although there is evidence that his left hand is also affected to a lesser degree.

1. With regard to the medical evidence, there appear to be two opposing schools of opinion. The first is that Dupuytren’s disease is developed by those who have a genetic disposition to the disease and is therefore considered constitutional in origin. Moreover, the onset of the disease is not hastened by manual work. (See the reports of Dr Honner, Dr Connolly and Dr Kemp, who are all hand specialists.) The second school of opinion appears to be that in Mr Thornberry’s case, although the disease may be constitutional in origin, the disease has been aggravated or accelerated by the particular conditions of his manual work as a linesman. (See the reports of Dr Douglas, Dr Jeffrey, Dr Hopcroft and Dr Walker. Dr Jeffrey is a general practitioner, Dr Douglas an Orthopaedic Surgeon, and Dr Hopcroft and Dr Walker are Surgeons.)

1. A close examination of the article by Dr McFarlane, referred to by Dr Connolly in his report, is worthwhile. Dr McFarlane stated the disease is more common in men, and the average age of onset is 48. The clinical appearance varies considerably. There is an increasing prevalance of the disease in combination with other factors such as diabetes, epilepsy, or alcoholism. None of these factors appear to be relevant in the case of Mr Thornberry. Dr McFarlane referred to various studies examining the prevalence of the disease among manual workers and concluded that the studies do not suggest that manual work causes the disease to appear at an earlier age or to be more aggressive amongst such workers. However, he referred to a study by Cocco et al of miners exposed to increased hand/arm vibration which reported an increased prevalence of the disease and acknowledged:

“The association of DD [Dupuytren’s disease] with hand/arm vibration exposure needs to be more carefully observed and evaluated in epidemiologic studies.”

1. Dr MacFarlane also referred to a study “suggesting that in a young person a causative relation can exist if DD follows a hand injury”, but said that an injury in men over 40 or women over 50 “is unlikely to be causally related to the onset of DD”. Dr McFarlane concluded:

“There is not sufficient evidence from epidemiologic studies to state that manual work either hastens the onset of the disease or the progression of existing disease.

Although most injuries to the hand do not result in DD or even the thickening of the palmar aponeurosis, we have shown that occasionally a single injury can precipitate the onset of DD. The mechanism is unknown but presumably occurs in genetically susceptible persons. Our studies suggest that a causal relationship can be established only in young people.”

1. In my view, in light of the fact that the onset of the disease in Mr Thornberry’s case occurred in his early 30s, and that his work is manually strenuous and repetitive in nature, if one follows the discussion and opinions expressed by Dr McFarlane, one cannot rule out the possibility that there is a causal relationship between the aggravation or acceleration of Mr Thornberry’s condition and his employment as a linesman. Added weight is accorded to this possibility by the opinions expressed by the three surgeons who opined that Mr Thornberry’s condition was aggravated or accelerated by his employment. While, the hand specialists disagree, Dr McFarlane’s report, in which Dr Connolly obviously placed great store, seems to admit that possibility.

1. The Arbitrator, who noted the indicators in Dr McFarlane’s article, found that Mr Thornberry’s condition had been aggravated, accelerated or exacerbated by the nature and conditions of his employment. In her ex tempore decision, the Arbitrator discussed the medical evidence on which her conclusion was based. That medical evidence was, in my view, logical and probative (as required by Rule 70 of the Workers Compensation Commission Rules 2003), and I am not persuaded that there is any evidence to demonstrate that the Arbitrator did not exercise her discretion fairly and lawfully. Thus, there is no basis for interference for her decision which must, therefore, be confirmed.

DECISION

1. The decision of the Arbitrator is confirmed.

COSTS

1. The Appellant, Country Energy, is to pay Mr Thornberry’s costs in this appeal as agreed or assessed.

Robin Handley

Acting Deputy President  

14 November 2005

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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