Department of Ageing Disability & Home Care v Heggie
[2008] NSWWCCPD 112
•7 October 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Department of Ageing Disability & Home Care v Heggie [2008] NSWWCCPD 112 | |||||
| APPELLANT: | Department of Ageing Disability & Home Care | |||||
| RESPONDENT: | Marie Heggie | |||||
| INSURER: | Allianz Australia Insurance Ltd | |||||
| FILE NUMBER: | WCC2933-08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 6 June 2008 | |||||
| DATE OF APPEAL DECISION: | 7 October 2008 | |||||
| SUBJECT MATTER OF DECISION: | Causation; weight of evidence; adequacy of reasons. | |||||
| PRESIDENTIAL MEMBER: | President, Judge Keating | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | McLean Lawyers | ||||
| Respondent: | Maurice Blackburn Lawyers | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 4 June 2008 is confirmed. | |||||
| The Appellant is to pay the Respondent’s costs of the Appeal. | ||||||
BACKGROUND TO THE APPEAL
On 1 July 2008, the Department of Ageing, Disability and Home Care (‘the Department’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 6 June 2008.
The Respondent to the appeal is Marie Heggie (‘Ms Heggie’).
Ms Heggie is a 55 year old assistant in nursing at Stockton Hospital who alleges that she suffered an injury to her left leg and right hip on 10 June 2005 when she slipped whilst leaving her place of employment at Stockton Hospital.
In due course, Ms Heggie sought lump sum compensation under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) for a 10% whole person impairment, 8% of which related to her restricted range of motion associated with an injury to her right hip and 2% for impairments relating to the injury to her left knee.
The Department disputed liability on the basis that the injury to Ms Heggie’s right hip did not arise out of the course of her employment (section 4 of the 1987 Act). The Department also allege that employment was not a substantial contributing factor to any injury to the right hip (section 9A of the 1987 Act).
On 21 April 2008 Ms Heggie filed an Application to Resolve a Dispute in the Commission.
The Department filed a reply relying upon the issues raised in the notice pursuant to section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The Department raised the following reasons for disputing liability:
(a)Dr Bodel, a medico-legal consultant retained by the Department, considered that the condition of the right hip resulted not from the injury, but from the result of an underlying arthritic degenerative condition;
(b)No complaints of any injury to the right hip were made at the time of the injury on 10 June 2005 or in fact, until many months later when Ms Heggie had returned to work;
(c)Dr Sullivan, a treating sport physician, examined Ms Heggie and noted that her gait was satisfactory and her range of motion of the hip was preserved, and
(d)Dr Bodel did not consider Ms Heggie to have any impairment as a result of the injury sustained on 10 June 2005.
The matter was listed for arbitration before an Arbitrator of the Commission on 4 June 2008. Following unsuccessful attempts to resolve the matter, the Arbitrator proceeded with the arbitration. Documentary evidence was exchanged between the parties and no additional evidence was called at the arbitration. At the conclusion of the proceedings, the Arbitrator delivered an ex tempore decision.
The Arbitrator found that the injury to Ms Heggie’s right hip arose out of the course of her employment with the Department following the injury sustained by her on 10 June 2005. He directed that the matter be remitted to the Registrar to arrange a referral to an approved medical specialist for the assessment of the quantum of Ms Heggie’s whole person impairment.
On 1 July 2008 the Department filed an application seeking leave to appeal the Arbitrator’s decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 6 June 2008, records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
(a)That the Applicant suffered an injury to her right hip on 10 June 2005 arising out of or in the course of her employment with the Respondent and to which her employment was a substantial contributing factor.
(b)That the matter be remitted to the Registrar to arrange a referral to an AMS to assess the degree of permanent impairment resulting from this injury and whether any proportion of permanent impairment is due to prior injury or pre-existing abnormality or condition.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are that the Arbitrator erred in:
(a)finding that Ms Heggie suffered an injury to her hip in an incident on 10 June 2005, such a finding being against the weight of evidence;
(b)making findings that were based on incorrect assumptions as to the facts and giving undue weight to the opinion of Dr Best, a medico-legal expert qualified by Ms Heggie;
(c)finding the “alternative” cause of injury, which was against the weight of evidence, and
(d)failing to give adequate reasons.
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 on 1 July 2008, within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The thresholds in section 352(2)(a) and (b) are met.
Leave to appeal is granted.
NATURE OF REVIEW
The nature of a “review” under section 352 of the 1998 Act was considered in Aluminium Louvres and Ceilings Pty Ltd v Zheng (2006) NSWCA 34: (2006) 4 DDCR 358 (‘Zheng’) where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator’s discretionary decision in controlling procedure may be based on the test stated in House v R (1936) 55 CLR 499 at 504-505: but that is not the only basis upon which the Presidential Member may act. The powers of a Presidential Member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed, the manner in which the powers of a Presidential Member are to be exercised is itself the subject of discretion of the Presidential Member.”
McColl JA approved this passage in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421: (2007) NSWCA 16 at (134) (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v King principles” was described as “an over‑generalisation” (at [133]). Thus, on review a Presidential Member is not bound by an Arbitrator’s discretionary decision but can reach his or her own conclusion.
The nature of review was further considered in State Transit Authority of NSW v Fritzi Chemler (2007) NSWCA 249: (2007) 5 DDCR 287 (‘Chemler’) where Speiglmen CJ said at [28] and [30]:
“[28] The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of terminology of “review” instead of “appeal” with respect to the workers compensation system in this State, which establishes the breadth of review on the merits.
[30] A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
In a recent decision of Tan v National Australia Bank Limited [2008] NSWCA 198 (‘Tan’) Basten JA noted that at [12]:
“The fact that the term “appeal” may refer to a hearing de novo, the fact that the appeal is described as one “by way of review”, together with the largely unlimited discretion conferred on the Deputy President as to the manner in which the appeal will be conducted and the broad powers, including the power to make a “new decision” in place of that subject to appeal, all tend to confirm that the Deputy President may conduct a fresh hearing and is not constrained to intervene only if satisfied that the decision of the Arbitrator was effected by identifiable error.”
I propose to apply these principles in the matter before me.
EVIDENCE AND SUBMISSIONS
Grounds 1 & 2
The Arbitrator’s finding that the Respondent suffered an injury to the hip on 10 June 2005, was against the weight of evidence and was based on incorrect assumptions
It is common ground that Ms Heggie was injured on 10 June 2005 when she slipped on wet tiles as she was leaving her place of employment at Stockton Hospital. There is no issue that she injured her left leg.
Ms Heggie claims that in that incident she fell onto her right buttock and injured her right hip, although the symptoms pertaining to that injury did not present until July 2005. Ms Heggie is uncertain as to the precise date. Ms Heggie states at paragraph six of her statement that the incident occurred in these circumstances:
“On 10-6-5 I was leaving work early to attend physio. I took one step through the door when my right foot slipped on the wet tiles, my right let went straight out in front of me. I landed on my right buttock with my left leg bent back underneath me.”
Ms Heggie was taken by her daughter to John Hunter Hospital where a diagnosis of soft tissue damage to the left knee was made. She came under the care of her general practitioner, Dr Marley, who arranged for her to have physiotherapy and ordered anti‑inflammatory medication and analgesics. The knee was a persistent problem and prevented Ms Heggie from being able to straighten her leg.
On 30 June 2005 Ms Heggie was referred to Dr Berton, orthopaedic specialist, for treatment in respect of her knee.
Between the fall in June 2005 and the onset of the hip pain in July 2005, Ms Heggie states that she was unable to straighten her left leg. She was limping and carrying her weight on her right leg and a little on the left toes. She had difficulty getting out of chairs and going downstairs and generally most chores. She stated she spent most of her time on the couch with her legs up.
Ms Heggie describes an incident that occurred in July 2005, when she was attempting to get up from a dining chair at home. She states that she pushed the chair back and swung her legs around. As she tried to get up she felt a severe snap in her groin. Since that time she has complained of groin pain, which was subsequently diagnosed as emanating from the right hip.
On 10 August 2005, Dr Berton undertook arthroscopic surgery in the form of a chondroplasty to the patella and removal of debris. After the surgery Ms Heggie took anti‑inflammatory medication. She attended physiotherapy for the knee and rested at home. In October 2005 she returned to work on light duties and other restrictions. Progressively she increased her hours and reduced her medication. By November 2005, the pain in her groin was escalating and at that point she sought treatment from a massage therapist and reported her complaints to Dr Marley.
The Department submits that Ms Heggie did not complain about her hip pain until October/November 2005, and relies on the following evidence;
(a)Dr Saunders, in the initial WorkCover medical certificate dated 10 June 2005, diagnosed that Ms Heggie suffered a “mild knee sprain”. The certificate was issued on the day of the injury and before the commencement of treatment, especially medication;
(b)the referral by Dr Marley to the physiotherapist, Deidre, made no mention of hip pain;
(c)the medical certificate issued by Dr Marley on 14 June 2005 makes no mention of injury to the hip;
(d)the Department submits that Ms Heggie did not give a history to Dr Bodel of suffering right hip injury on 10 June 2005;
(e)Ms Heggie’s compensation claim form dated 30 September 2005 stated that the only body part injured was the “left knee”, and
(f)the history contained in Dr Berton’s report dated 30 June 2005 refers only to the knee and has no history of the injury to the hip.
There is no dispute that Ms Heggie did not begin to experience hip pain until July 2005. It is therefore unremarkable that the certificate issued on the day of her accident made no reference to it, nor the referral from her general practitioner, Dr Marley, to the physiotherapist, nor the first certificate issued by Dr Marley, as all of these events occurred before Ms Heggie first became aware of an injury to her hip.
The history relied upon by Dr Bodel is significant in resolving these issues and I shall deal with it in due course.
On the workers compensation claim form dated 30 September 2005, in answer to the question ‘What part/s of your body is/are injured,’ Ms Heggie wrote “left knee”. She said in her statement she thought that the form referred to the part of the body that she was having treatment for and that at that stage she was still on pain killing medication for the knee and had not appreciated the extent of her hip injury. The claim form was submitted about six weeks after her knee operation and before Ms Heggie returned to work. She had begun to experience hip symptoms by the time she completed the claim form, but it was completed before Ms Heggie claims that her symptoms became more severe after she returned to work and started weaning herself of pain medication.
The Department submits that Dr Berton, in his report of 30 June 2005, does not include a history of injury to the hip. He recorded the history as follows:
“The mechanism of injury is that she was leaving work, she slipped on a wet tile with her right foot and twisted awkwardly on that left knee with the crunching sensation emanating from the knee.”
Again, the history given to Dr Berton is unremarkable in that it was taken at a time before Ms Heggie was aware of any symptoms emanating from the hip. It is also consistent with Dr Berton being focused on the history insofar as it concerned the knee injury for which he had been asked to treat for Ms Heggie.
The Department submit that this is a contradiction between Ms Heggie’s statutory declaration dated 13 June 2007, with the lack of mobility recorded by Dr Best in his report dated 6 December 2007. Dr Best is an orthopaedic surgeon to whom Ms Heggie was referred for a medico-legal opinion. In Ms Heggie’s statutory declaration of 13 June 2007 at paragraph eight she said:
“I had been walking around the house for a long time favouring my left leg. Sometime around July 2005 I was getting out of the kitchen chair at home when I felt a snap in my right groin. I spoke to Dr Marley about this, although not a lot was done while I was recovering from the surgery to my knee.”
Dr Best in his report dated 6 December 2007 noted:
“The injury also caused articular damage to the right hip. There was slight delay in the presentation of the right hip condition due to the fact that the left knee symptoms and treatment tended to override her right hip condition and also due to the fact that she was quite immobile soon after the subject work injury. However, I have no doubt that the right hip condition is related to the work injury of 10 June 2005.”
The passage the Department has quoted must be read in context with the following extract, from paragraph eight of Ms Heggie’s statement.
“Since my fall in June I was not able to straighten my leg. I was limping and carrying my weight on my right leg and a little on my left toes. I had difficulty getting out of chairs, going downstairs and generally most chores. I was spending most of my time on the couch with my legs up…”
I do not accept the submission that Ms Heggie’s statements are contradictory. It is clear from her statements and the history she provided to Dr Best that she was indeed quite immobile, although it has never been suggested that she was unable to attend to the activities of daily living, which would have required her to walk around within her home from time to time, albeit favouring the left leg.
The Department further submits that Dr Best has formed his opinion based on the report of Dr Peter Berton dated 15 December 2005. Dr Berton recorded:
“I have not been aware of the hip problem until now and Marie states that it has only really surfaced since she stopped anti-inflammatories and painkillers of late.”
The Department goes on to submit that this history does not accord with Ms Heggie’s statements and in particular that she had a significant episode at home in July 2005. I reject the submission that Dr Best, upon whom the Arbitrator relied heavily, formed his opinion on an incorrect history. Dr Best had a history provided to him by Ms Heggie, which was entirely consistent with her statements, together with the additional radiological investigations and other medical reports. While Dr Berton may not have had a history of the incident at home in July 2005, concerning the onset of hip pain, it is clear that Dr Best did have that history. I can see no toehold whatsoever to sustain a submission that Dr Best’s opinion was formed on the basis of an incorrect history.
The Department submits that Ms Heggie’s statements are in “stark contrast” to the opinions proffered by Drs Best and Berton in that she, by her own admission, continued to feel and notice pain ever since the incident at home in July 2005. It is further submitted that Ms Heggie noticed the pain despite the injury to her left knee and notwithstanding that she was taking painkillers. I fail to see any such stark contrast. Dr Best clearly noted on page two of his report:
“Her left knee symptoms partially improved and she attended physiotherapy however, Ms Heggie continued to have right groin pain”.
Dr Best went on to note:
“Ms Heggie returned to light work on restricted hours in October 2005. However, her right groin pain continued to be present and increased in severity”.
The history obtained by Dr Best is entirely consistent with Ms Heggie’s own evidence in that a problem with her hip first came to her attention in July 2005 when she attempted to get up from a chair at home. She continued to have groin pain thereafter. It was only after she returned to work, initially on light duties in October 2005, that the pain persisted and increased in severity. This is precisely the history that Dr Best relied upon in forming an unambiguous opinion that the injury to the right hip was related to the work injury on 10 June 2005.
The Department relies on Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 (‘Etherington’) where McColl JA states, at [81], [83] and [84]:
“81.…in the absence of any identified factual basis for their opinions that the Respondent’s work could possibly be… or was a substantial contributing factor to his injury the reports were inadmissible and, if admitted, carried no weight.”
“83.…the absence of any expert opinion explaining how the Respondent’s employment substantially contributed to an injury which occurred during a period of rest, could not be cured by recourse to the primary Judge’s knowledge as a member of a specialist tribunal.”
and
“84.…it has long been the case that a court cannot be expected to, and should not, act upon an expert opinion the basis for which is not explained by the witness expressing it.”
In South West Sydney Area Health Service v Edmonds [2007] NSWCA 16: (2007) 4 DDCR 421 (‘Edmonds’) the Court of Appeal held that the above principles applied to proceedings in the Commission (per McColl JA at [130] and [131]). In that case, the worker injured her right knee in a frank injury in May 1993. In August 2002, she sought lump sum compensation for continuing problems in her right knee and for problems with her back and left knee. At the suggestion of the Arbitrator, Ms Edmonds amended her claim to rely on the disease provisions of the 1987 Act. The Arbitrator relied upon the evidence of Dr Rivett that “in general all of the problems are work related” and found in the worker’s favour. McColl JA (Giles and Tobias JJA agreeing) held that this opinion, without any explanation, amounted to a bear ipse dixit and offered no probative support for the Arbitrator’s conclusion (at [132]). Whilst Ms Edmonds thought that favouring her right leg through strain onto her ride side and her back, Dr Rivett did not indicate whether that was a valid proposition (at [138]).
The Department submits that Dr Best has not reconciled Ms Heggie’s statement that she continued to feel pain after July 2005 despite the use of painkillers or anti-inflammatory medication, or despite the left knee pain during this period. Further, it is submitted that Dr Best did not express an opinion as to why there were no symptoms in the right hip immediately after the fall. It is submitted that Dr Best has not explained why the initial symptoms became apparent whilst at home in July 2005 when Ms Heggie was getting up from a chair and prior to weaning herself of anti-inflammatory medication.
In fact, Dr Best clearly stated at page four of his report:
“There was slight delay in the presentation of the hip condition due to the fact that the left knee symptoms and treatment tended to override the right hip condition and also due to the fact that she was quite immobile soon after the subject work injury.”
The Arbitrator accepted Dr Best’s explanation for the delay in the presentation of symptoms in the right hip. The reasons for Dr Best’s opinion are clearly expressed in his report, particularly at page four, as I have indicated.
I see no validity in the argument that Dr Best’s report fails to reach the standard expressed in Etherington or Edmonds. Dr Best’s opinion is clear and indeed persuasive. It was open to the Arbitrator to rely upon it and in doing so no error is disclosed.
The Department submit that the Arbitrator erred in that he placed undue weight upon the medical opinion of medical experts qualified on behalf of Ms Heggie, mainly that of Dr Best. There is no challenge to Dr Best’s expertise as an orthopaedic surgeon and I note that he is an approved medical specialist.
Whilst there were a number of medical reports submitted in the proceedings, which included:
(a)Dr Marley, Ms Heggie’s treating general practitioner;
(b)Dr Peter Berton, an orthopaedic surgeon to whom Ms Heggie was referred to for treatment of the left knee condition;
(c)Dr Halpin, a sports physician to whom Ms Heggie was referred for treatment of her hip, and
(d)Dr Sullivan, an orthopaedic surgeon to whom Ms Heggie was referred for surgery on her hip.
However, none of these doctors specifically addressed the issue in these proceedings, that is, whether the right hip condition of which Ms Heggie complains was related to the incident of 10 June 2005.
Only two doctors addressed the critical question, and they are Dr Best and Dr Bodel. The Arbitrator carefully weighed the evidence of both Dr Best and Dr Bodel in coming to his decision. He noted that Dr Best provided an explanation as to why the symptoms were not of immediate concern and that the explanation correlated broadly with what Ms Heggie said in her statement, i.e. that she was quite immobile in the weeks immediately following the accident. Dr Best explained that the chronic symptoms experienced by Ms Heggie in her left knee “tended to override” her right hip condition. He noted that after Ms Heggie returned to work (following surgery for the knee) in October 2005, the right groin pain continued to be present and increased in severity.
Dr James Bodel is an orthopaedic surgeon who is also an approved medical specialist. Dr Bodel was retained by the Department to provide a medico-legal opinion. Dr Bodel took a history from Ms Heggie, which included a detailed history of the incident in which she was involved in on 10 June 2005 followed by the development of and treatment for the injury to her knee. Insofar as the hip was concerned he noted:
“The right hip and groin pain, however, slowly deteriorated over the next few weeks because she was favouring that side to protect the injured left side. She also developed a “popping” sensation in the region of the right groin and she was later referred to Dr Neil Halpin, sports physician.”
Dr Bodel then went on to record the radiological investigations and findings concerning the hip. Dr Bodel referred to Ms Heggie’s treatment by Dr James Sullivan, an orthopaedic surgeon, for the injury to the right hip and referred in particular to the arthroscopy on 28 March 2006. He noted Dr Sullivan’s opinion that the clinical symptoms suggested Ms Heggie was “getting catching related to the chondral lesion and may have a chondral flap”. The operative report noted “there were chondral flaps over the superior surface of the femoral head with full thickness articular cartilage loss”.
Dr Bodel’s report then goes on to record Ms Heggie’s past medical history, previous claims, current complaints, social history and details of his examination. Dr Bodel noted that he had carefully perused the documentation provided, including the medical certificates and radiology. He noted in particular the claim form submitted by Ms Heggie dated 30 September 2005, three and a half months after the injury. He noted that at the time she completed the form she made mention only of the injury to the left knee and made no mention of right hip pain.
In answer to the question “a diagnosis of the claimant’s injuries and the relationship of the injuries to the work accident” Dr Bodel stated:
“This lady has suffered a tear of the medial meniscus in the left knee and some retropatella damage in the left knee. She later developed pain in the right groin and hip. It appears from the documentation provided that the symptoms in the right groin had not developed at the time that she filled out the claim form, which was 3 ½ months after the injury. It is unlikely therefore that the pathology in the right groin is directly attributable to the injury that occurred on 10 June 2005.”
At paragraph 14 of Ms Heggie’s statement her attention was drawn to the claim form and the absence of any reference to the hip. She said that she only made reference to the left knee as she thought that the form referred to the part of the body that she was having treatment for and at that point she was still taking painkillers for the knee and had not “realised how bad my hip was” (paragraph 57 supra).
In dealing with Dr Bodel’s evidence, the Arbitrator noted that Dr Bodel obtained a history of slowly deteriorating right hip and groin pain. However, Dr Bodel seems to rely exclusively on the information submitted in the claim form and concluded that as symptoms did not present for three and half months after injury that there was unlikely to be a causal link between the hip injury and the incident on 10 June 2005. The history in the claim form relied upon by Dr Bodel, is inconsistent with Ms Heggie’s statements, which the Arbitrator accepted, that the problems with the hip presented several weeks after the accident and gradually deteriorated and significantly worsened after October 2005 when she returned to work.
In Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, at [64] Heydon JA said:
“64 The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are "sufficiently like" the matters established "to render the opinion of the expert of any value", even though they may not correspond "with complete precision", the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland Constructions Pty Ltd[1985] HCA 58; (1985) 59 ALJR 844 at 846. One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert's conclusion must have some rational relationship with the facts proved”.
Justice Heydon went on to say at [85]:
“….so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight”.
Ms Heggie’s evidence as to the onset of her hip pain was not challenged. It would appear that the history she gave to Dr Bodel was broadly consistent with her statement of evidence to the Commission and with the histories given to her treating doctors.
While not expressly saying so, the Arbitrator (T26.24) applied the principles set out in Makita when he said:
“In any event because it seems to me that Dr Bodel formulated his opinion with respect to the causation of the right hip pathology by reference to an incorrect history and not the correct history of pain some weeks after the event, which worsened, particularly after a return to work and increasing hours, and weaning of medication, that I do have to afford less weight to his view than the other medical opinions.”
Dr Bodel relied on a selective part of the history (the claim form), to the exclusion of the full history. Therefore his history did not provide a ‘fair climate’ for the acceptance of his opinion.
Given, as the Arbitrator found, that Dr Bodel relied on the statements contained in the claim form, which were inconsistent with the accepted facts as to the onset of hip pain, the facts upon which he relied were not “sufficiently like” the facts established to render his opinion of any value. For the reasons stated, the Arbitrator’s treatment of the evidence insofar as it concerned the competing opinions of Drs Bodel and Best was open and compelling. I agree with the Arbitrator’s findings.
The Department submit that the Arbitrator based his findings on an incorrect assumption that Ms Heggie did not notice the symptoms in her right hip until weaning herself of the medication. There is no basis for that submission. The Arbitrator clearly identified his understanding that Ms Heggie first experienced pain in her right groin in July 2005 (T22.51). Further, the Arbitrator noted that the hip pain became a significant problem after Ms Heggie returned to work in October 2005 (T26.4).
The Department submit that the Arbitrator placed undue weight on the opinion of Dr Best. For the reasons I have explained, I reject that submission. It was open to the Arbitrator to prefer the evidence of Dr Best to Dr Bodel. On review, I agree with the Arbitrator’s finding.
Ground 3
The weight of evidence does not support the Arbitrator’s alternative finding as to the cause of Ms Heggie’s hip injury
The Arbitrator’s primary finding, on the balance of probabilities, is that Ms Heggie’s hip injury arose as a result of the incident on 10 June 2005, following a delayed onset of symptoms.
In the alternative, the Arbitrator proffered another ‘explanation’ as to the cause of the injury, that being that the injury to the hip arose as a consequence of Ms Heggie being unable to straighten her leg, having an altered gait and suffering a period of relative immobility. Whilst offering the alternative explanation on the causation issue, the Arbitrator made it clear that his finding, on the balance of probability, was that the injury to the hip arose directly from the injury sustained when Ms Heggie slipped and fell on 10 June 2005. This finding is challenged on two bases: firstly, that the evidence did not support an alternative finding on injury, and secondly, the alternative explanation is not supported by Dr Best. Nothing turns on this, as the Arbitrator did not rely on Dr Marley’s opinion as support for his findings, except to propound his alternative theory as to causation.
In any event I am not satisfied this alternative ground of appeal has any merit for the following reasons:
(a)Although the alternative theory is supported by Dr Marley, it is submitted that his history was inadequate in that it did not include reference to the significant incident that occurred at home in July 2005. I accept that Dr Marley’s report does not record the history of the onset of pain in July 2005. He nevertheless had the benefit of seeing Ms Heggie on at least 18 occasions between June 2005 and November 2006. He also had the benefit of reports to him from the treating specialist to whom he had referred Ms Heggie, including Dr Sullivan, Dr Halpin and Dr Berton. He had the added advantage of access to the radiological reports. I cannot be certain that Dr Marley was not given the history of what occurred in July 2005, as his notes are not in evidence. He certainly did not make any reference to it in his report.
(b)Dr Marley obtained a history of altered gait and significant favouring of the left leg. He explained that the groin pain, in his opinion, emanated from her hip and this was caused by excessive weight bearing on the right leg.
(c)Though it is not essential for the resolution of the appeal, I consider the principles I have referred to in Etherington and Edmonds have been satisfied, even though the facts Dr Marley relied upon may not precisely mirror the facts as established. He has identified in my view, a sufficient factual basis for his opinion to be accepted. It follows that ground three fails.
Ground 4
The Arbitrator failed to give adequate reasons supporting his decision
The Department submit that the Arbitrator failed to provide adequate reasons as to how there can be two alternative and conflicting mechanisms of injury. References made to the statements of Deputy President Fleming (as she then was) in Christopher Michael McMann v Anthony Lagana and Joseph Lavella t/as the Vessel “Nimble” II at paragraphs [47] to [48].
Section 294(2) of the 1998 Act requires a brief statement to be attached to a Certificate of Determination, setting out the Commission’s reasons for the determination.
Rule 15.6 of the Workers Compensation Rules 2006 provides:
“(1)A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a) the Commission’s findings on material questions of fact, referring to the evidence and other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c) the reasoning processes that led the Commission to the conclusions it made.
(2)Without limiting sub-rule (1), the reasons set out in a statement referred to in sub-rule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
To succeed in having the decision set aside on this ground the Department must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator has failed to exercise his statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311; ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21).
The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). An Arbitrator’s reasons should be read as a whole and it is not for a Presidential Member on review to comb through the Arbitrator’s findings and reasons in search of error (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444; Minister for Immigration and Multicultural Affairs v Wu Shu Liang (1996) 185 CLR 259). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424).
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (‘Soulemezis’) McHugh JA (as he then was) stated at [280]:
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given.” (emphasis added)
Her Honour’s comments in Etherington at [100] are also relevant:
“The primary judge must state generally and briefly the grounds which have led him or her to conclusions concerning disputed factual questions and to list the findings on the principal contested issues. Although it is not necessary that the judge refer to all the evidence, ‘[w]here nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged’: Soulemezis, at 259, per Kirby P.”
The reasons provided by the Arbitrator, that is, his reliance on the evidence of Dr Marley, were in my view, sufficient to explain an alternative cause of injury. It is submitted that the reasons were inadequate in that they failed to provide reasons as to how there were two alternative and conflicting mechanisms of injury. The Arbitrator made it clear that on the balance of probabilities he had found that the injury to the hip was caused as a result of the incident that occurred on 10 June 2005.
The Arbitrator’s reasons make it clear that if, on appeal, it were held that Ms Heggie’s injuries to her hip were not caused as a result of the incident on 10 June 2005 then an alternative explanation for the cause of the injury was available, that is, it being as a consequence of altered gait as a result of the injury to her knee. The reasons given, although not lengthy, satisfy the statutory requirement, the Commission’s rules, and the accepted authorities on the adequacy of reasons.
The Department submit that the Arbitrator failed to provide any or any adequate reasons for excluding the incident at home in July 2005 as the cause for Ms Heggie’s injury. Further, it is submitted the Arbitrator failed to “reconcile this difference with the history and opinion of Dr Best on whom he based his decision”. At the outset of his submissions to the Arbitrator, Mr Best of counsel for the Department submitted that one explanation for Ms Heggie’s hip condition is that she injured it in July 2005 whilst attempting to get up from a chair at home. That submission was not developed before the Arbitrator by reference to any expert or lay evidence. Indeed, the Department’s only medical expert, Dr Bodel, based his opinion on the assumption that the pathology in the groin did not present until three and a half months after the injury on 10 June 2005. That would place the onset of the injury towards the end of September 2005 and would be inconsistent with a frank injury occurring in July 2005.
The parties are entitled to a judgment based on findings and reasons which enable a “proper understanding of the basis upon which the verdict has been reached” Pettitt v Dunkley [1971] 1 NSWLR 376 at [382]. The Arbitrator’s reasons must be read in the context of the decision as a whole and, no doubt, a certain degree of latitude should be allowed in the expression of those reasons. Nor is an Arbitrator expected to deal with every argument put by counsel in the course of the trial nor every aspect of the evidence (Mashiati v Australian Poultry Limited (1995) 11 NSWCCR 345 at [353] and [354]).
The Arbitrator has given clear reasons for his finding that Ms Heggie suffered an injury to her hip as a result of the incident that occurred at work on 10 June 2005. I reject the submission that the Arbitrator’s reasons were inadequate by reason only of having failed expressly to exclude the possibility of the injury to Ms Heggie’s hip arising as a result of a frank incident that occurred at home in July 2005. There being no evidence to support the submission of a frank injury occurring in July 2005, coupled with the fact that such a finding would be inconsistent with the decision as a whole, I am not persuaded that the Arbitrator has erred in not expressly providing reasons for rejecting the submission. It follows that ground four fails.
DECISION
The decision of the Arbitrator dated 4 June 2008 is confirmed.
COSTS
The Appellant is to pay the Respondent’s costs of the appeal.
Judge Keating
President
7 October 2008
I, ALLISON LEE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE GREG KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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