Department of Corrective Services v Bryce
[2008] NSWWCCPD 116
•16 October 2008
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| STATUS: Decision confirmed on Appeal: Andrew Bryce v Department of Corrective Services [2009] NSWCA 188 | |||||
| CITATION: | Department of Corrective Services v Bryce [2008] NSWWCCPD 116 | ||||
| APPELLANT: | Department of Corrective Services | ||||
| RESPONDENT: | Andrew Bryce | ||||
| INSURER: | Employers Mutual Limited | ||||
| FILE NUMBER: | WCC509-08 | ||||
| DATE OF ARBITRATOR’S DECISION: | 27 May 2008 | ||||
| DATE OF APPEAL DECISION: | 16 October 2008 | ||||
| SUBJECT MATTER OF DECISION: | Injury; causation; evidence; application of Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Rankin Nathan Lawyers | |||
| Respondent: | Kells The Lawyers | ||||
| ORDERS MADE ON APPEAL: | Time to appeal is extended until 25 June 2008. The Arbitrator’s determination dated 27 May 2008 is revoked and the following orders made: “1. Award for the Respondent employer. 2. Each party is to pay his or its own costs of the arbitration.” | ||||
| Each party is to pay his or its own costs of the appeal. | |||||
BACKGROUND
On 12 March 2007, Mr Bryce jerked his body when the right armrest of a chair on which he was sitting suddenly gave way. The consequences of this incident are disputed. Mr Bryce alleges that the incident caused an injury to his neck resulting in him having to undergo surgery to his neck on 5 October 2007. His employer, the Department of Corrective Services (‘the Department’), argues that the incident resulted in no more than a temporary aggravation to Mr Bryce’s pre-existing back condition and that he sustained no injury to his neck.
The Department’s insurer (Employers Mutual Limited) denied the claim by notice under section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) dated 3 September 2007. The decision to decline the claim was made for the following reasons:
“1.Your employment is not a substantial contributing factor to your current symptoms.
2.Any aggravation (which is denied) is [sic] now ceased.” (emphasis added)
Unfortunately, the terminology in the notice is inconsistent with the legislation and displays a fundamental misunderstanding of the Workers Compensation Act 1987 (‘the 1987 Act’). As has been explained in many decisions, both in the Commission and in the former Compensation Court of NSW, section 9A of the 1987 Act only requires that a worker’s employment be a substantial contributing factor to his or her injury. Employment does not have to be a substantial contributing factor to the “current symptoms” (see Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725; Bielecki v Rianthelle Pty Ltd t/as Belflora [2008] NSWWCCPD 52; Matar and anor v Zeineddine [2008] NSWWCCPD 51).
Nevertheless, the medical evidence served with the notice made it reasonably clear that the insurer in fact disputed whether Mr Bryce had injured his neck in the incident on 12 March 2007. Whilst the insurer had not properly complied with section 74 of the 1998 Act (see Mateus v Zodune Pty Limited t/as Tempo Cleaning Services [2007] NSWWCCPD 227), Mr Bryce took no issue with the form of the notice and the matter proceeded on the basis that the issue in dispute was whether Mr Bryce injured his neck in the incident on 12 March 2007.
By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 25 January 2008, Mr Bryce sought weekly compensation for various closed periods between September 2007 and January 2008, and hospital and medical expenses under section 60 of the 1987 Act.
The Department’s Reply was attached to an Application to Admit Late Documents filed on 22 February 2008. The Arbitrator gave leave for the filing of the Reply out of time.
The matter proceeded to arbitration on 13 May 2008. The Arbitrator heard submissions from counsel for each party, but took no oral evidence. In a reserved decision delivered on 27 May 2008, the Arbitrator found in favour of Mr Bryce on all issues. The Certificate of Determination, dated 27 May 2008, records the Arbitrator’s determination as follows:
“1.That the Respondent pay the applicant weekly compensation at the rate of $1,144.77 from
·3 September 2007 to 3 November 2007 and
·4 November 2007 to 4 November 2007 [sic] and
·from the 17 December 2007 to the 7 January 2008 pursuant to section 36 of the Workers Compensation Act 1987.
2.That the respondent pay the applicant’s section 60 of the Workers Compensation Act 1987 expenses up to the sum of $23,166
3.That the respondent pay the applicant’s costs as agreed or assessed.
The following is not an order of the Commission but it is noted that the Parties agree that the payments in order 1 above will be by way of re-accreditation of leave entitlements.”
By an appeal filed on 25 June 2008, the Department seeks leave to appeal the Arbitrator’s decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
There is no issue that the thresholds in section 352(2) are satisfied.
Time
The appeal was lodged one day outside the 28-day time limit in section 352(4) of the 1998 Act and the Department seeks an extension of time in which to appeal.
An extension of time in which to appeal is governed by Rule 16.2(11) of the Workers Compensation Commission Rules 2006 (‘the Rules’), which provides:
“(11) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’) where his Honour said at 480:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
In support of its application to extend the time in which to appeal, the Department submits:
(a)its solicitor received the Certificate of Determination and decision on 29 May 2008. If it is considered that the time for lodging the appeal runs from that date, the appeal would be within time;
(b)there will be substantial and demonstrable injustice if it loses the right to appeal as, though Mr Bryce claimed closed periods of weekly compensation and hospital and medical expenses, there is potential for a significant claim for whole person impairment, and
(c)Mr Bryce is not prejudiced by the late filing of the appeal.
As the above submissions failed to offer any explanation as to why the appeal was filed out of time, I issued a Direction on 16 September 2008 directing that further submissions be filed on that issue. On 23 September 2008, the Department made the following additional submissions:
(a)it had not failed to offer an explanation as to why the appeal was filed out of time;
(b)it is manifestly unfair for a regional practitioner to be prejudiced by being given a period less than 28 days to lodge an appeal;
(c)the relevant chronology after receipt of the Certificate of Determination is as follows:
(i)the solicitor reported to the insurer by email on 2 June 2008;
(ii)instructions were received to “refer the matter” to counsel;
(iii)a letter was forwarded to counsel on 4 June 2008;
(iv)counsel provided an oral advice that was acted upon;
(v)urgent instructions were sought from the insurer;
(vi)on 18 June 2008 the solicitor wrote to the Registrar of the Commission requesting a copy of the sound recording, and
(vii)final instructions to appeal were not received until late on the afternoon of 24 June 2008.
(d)time to appeal should be extended by one day to take into account the circumstances in obtaining late instructions from the insurer and having regard to the regional position of the solicitor’s Canberra office.
Mr Bryce submits:
(a)an appeal is a statutory remedy and, absent any statutory entitlement to extend the time in which to appeal, no extension can be granted;
(b)no formal application for an extension of time has been made;
(c)the Department’s submissions do not establish “exceptional circumstances” such that an extension of time would be granted;
(d)no explanation is given to explain the delay in lodging the appeal;
(e)the merits of the appeal are poor and in the circumstances no indulgence would be allowed;
(f)the fact that the Department’s solicitor conducts its business in Canberra is not a proper basis to allow leniency;
(g)no reason is given for the late instructions being received from the insurer, and
(h)the fact that, by the insurer’s own inaction, the Department failed to give timely instructions to pursue an appeal is a factor that militates against allowing an extension of time. That is especially so in the absence of any direct explanation as to why the insurer delayed in giving timely instructions.
Discussion – Extension of Time
I do not accept Mr Bryce’s submission that the Commission has no power to grant an extension of time to appeal. The power is found in Part 3 Rule 3.2 of the Rules, which gives the Commission power to extend or abridge any time fixed by the Rules or “under Part 9 of Chapter 7 of the 1998 Act”. The Minister, pursuant to the power in section 364 of the 1998 Act, makes the Commission’s Rules. Section 364(1)(g) provides express power to the Minister to make Rules for or with respect to “the extension or abridgement of any period referred to in this Part”. The reference to “this Part” is a reference to “Part 9 – Proceedings Before Commission” and includes section 352.
It is also incorrect to say that no “formal application for an extension of time has been made”. The appeal filed on 25 June 2008 identified that an extension of time was sought, though the language used and the supporting submissions were inadequate. Mr Bryce was well aware that such an application was being made and filed submissions in response to it.
The Department is in default in that it has not complied with the time limit in section 352(4) of the 1998 Act and it now seeks the Commission’s indulgence to extend the time to appeal. In such a situation, the putative appellant has an obligation to explain why he or she is in default and why the indulgence sought should be granted. In Iovanescu v McDermott [2004] NSWCA 106, the Court of Appeal dealt with an application pursuant to the District Court Rules, to seek an extension of the time in which to seek rescission of a dismissal order. Young CJ in Eq said:
“5. However, the authorities, when properly examined, do not stop there, but actually make it clear that prima facie the rules must be observed and that a person who seeks dispensation from them, particularly because of delay, must show good reason why such dispensation should be granted and must endeavour to explain away his or her apparent blameworthiness in connection with the total delay involved.”
The initial appeal documents made no attempt to explain the reason for the appeal being filed out of time. The submissions filed on 23 September 2008 set out some of the matters relevant to the issue to be decided, but again fell short of properly and fully explaining the reason for the default. No explanation has been offered as to how the receipt of the Certificate of Determination on 29 May 2008 (instead of 28 May 2008) contributed to the appeal being filed out of time. In the absence of such an explanation, the submission that “it is manifestly unfair for a regional practitioner to be prejudiced by being given a period less than 28 days to lodge an appeal” is unpersuasive.
The submissions did not indicate when counsel provided his oral advice, or when or how it was acted upon. Nor did they indicate when urgent instructions were sought from the insurer. There are no submissions as to what steps, if any, were taken to ensure that the insurer was aware of the 28-day time limit and to ensure compliance with that time limit.
Whilst the Commission has held in several cases that administrative errors by a legal practitioner are not a valid ground for extending the time to appeal (see Department of Education & Training v Mekhail [2006] NSWWCCPD 1 and Department of Corrective Services v Buxton [2007] NSWWCCPD 55), I am unable to determine if the appeal was filed out of time because of an administrative error on the part of the Department’s solicitor or because of some other reason.
Whilst the Department’s explanation for the appeal being filed out of time is far from satisfactory, I have determined, not without considerable reluctance, that exceptional circumstances exist that justify the extension of time to appeal in this matter. My reasons are as follows:
(a)the discretion to extend the time to appeal must be exercised in order to do justice between the parties;
(b)the appeal was filed only one day out of time;
(c)Mr Bryce has pointed to no prejudice he will face if time to appeal is extended by one day;
(d)the appeal raises issues that are strongly arguable and, in these circumstances, strict compliance with the time limit will work demonstrable and substantial injustice to the Department, as it will lose the opportunity to have the matter determined according to its substantial merits, and
(e)the Department’s solicitor acted with reasonable promptness, once instructions to appeal were given.
Time to appeal is extended until 25 June 2008.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions 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.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)finding that the injury to the cervical spine which led to the need for surgery was caused by the incident at work on 12 March 2007;
(b)finding that there was a causal connection between the injury to the cervical spine at two levels said to have occurred as a consequence of the incident on 12 March 2007;
(c)not adequately taking into account the various histories given by Mr Bryce to the doctors and not adequately considering the history of the incident on 12 March 2007;
(d)finding that the effect of the medication Mr Bryce was taking for his back had a masking effect and provided a sufficient explanation for the fact that he did not immediately complain of neck pain after the incident on 12 March 2007, when there was no evidence to support such a finding;
(e)concluding that the incident on 12 March 2007 was a “fall”;
(f)concluding that the complaints of tingling, pain and numbness occurred “weeks not months” after the incident on 12 March 2007;
(g)in rejecting the opinion of Dr Davies, and
(h)failing to apply the correct standard of proof to the “issue of” Mr Bryce’s neck pain.
THE EVIDENCE
Mr Bryce is currently 39 years old. He injured his upper back in 1998, whilst he was a member of the Australian Army. He was informed that the injury was “a wedging at the T8” (Mr Bryce’s statement 15 June 2007, paragraph six). He received medical treatment, but now suffers very little pain as a result of that injury.
Mr Bryce commenced work with the Department in 1990 and is currently a First Class Correctional Officer attached to the Campbelltown Court Complex.
In 1998, he injured his low back in the course of his employment with the Department. As a result of that injury he underwent surgery in the form of a fusion at the L5-S1 level in his low back in 2002. Since then he has experienced significant back pain and had several periods away from work. Notwithstanding these problems, Mr Bryce always managed to return to work as soon as he was medically cleared to do so. His low back injury and disability changed his life and prevented him from participating in active sport and restricted his social activities, particularly with his children.
On 12 March 2007, Mr Bryce was performing his normal duties in the Control Room at the Campbelltown Court Complex. He was seated in an office chair with arm supports and a swivel base. His supervisor, Carl Taylor, spoke to him and as he turned his chair to his right the right arm rest on his chair collapsed. As a result, Mr Bryce states (at paragraph 11 of his statement) that:
“Immediately on this happening my body collapsed to the right side and I felt a severe jerk to my whole right side. I immediately pulled myself up quickly and the first pain I recall was in my lower back and right leg. I stood up and looked at the chair to see what had happened to it. It was broken. Carl made a comment as to my appearance I felt nauseous I had a bit of shock and I had immediate concern for my lower back. I remained at work and I completed a report requesting new ergonomic chairs.”
Mr Bryce added that, as he did not feel “any extreme pain”, and as Mr Taylor had witnessed the incident, he did not report it. He stayed at work on 12 and 13 March 2007, but because the pain became unmanageable, he attended his general practitioner, Dr Ahmed, on 14 March 2007. Dr Ahmed certified Mr Bryce to be unfit for work for two days. After those days off, he was rostered off for the weekend.
On 19 March 2007, Mr Bryce returned to Dr Ahmed who referred him for physiotherapy with Ms Ellem.
Mr Bryce returned to work on 21 March 2007 and completed a claim form on that day. It describes the injured area as his “lower back/middle – lower back”. Mr Bryce felt that the pain was different from any previous low back problem he had suffered (Mr Bryce’s statement 15 June 2007, paragraph 20). He added (also at paragraph 20):
“The problem was there was persistent restriction in that there was a knot in my middle back or thoracic area. The physio had unlocked an area in my lower back and the pain in my leg had subsided however the middle back was still stiff, I still had the knotting sensation and I couldn’t straighten up.”
He added (at paragraph 22):
“The lower back pain has persisted since the initial incident on the 12th March 2007. My initial concern was my lower back but once my lower back became manageable again, I noticed the stiffness in my middle back was not getting any better. Further to this pins and needles or lack of sensation to my ring and middle fingers of my right hand. I have also had tenderness in my neck and upper back areas. I have brought these conditions to the notice of Dr Ahmed and my physiotherapist.”
A CT scan of the cervical and lower thoracic-lumbar spines were performed on 5 May 2007. Under “Clinical History” the report recorded “C6/7 tenderness. T10-T12, L1-L2 tenderness. Past history of lumbar fusion at L5 and S1 2002”. The cervical scan revealed disc protrusions at C5/6 and C6/7. It also recorded, “There is straightening of the cervical lordosis - ? muscle spasm”.
At some stage, Dr Ahmed referred Mr Bryce to Dr Rail, neurologist, who reported on 8 May 2007 as follows:
“Mr Bryce had a fall at work on 10th [sic] March. His chair collapsed and he landed on his right side. He suffers from bruising and pain through the right arm. He has more recently developed forearm tingling and he has had some residual numbness over D3/4. His neck is a little painful. He has a past history of L5/S1 radiculopathy. A CT scan of his cervical spine shows some indentation of the thecal sac at C5/6 and foraminal stenosis at C6/7.
On examination upper limb power was normal with intact reflexes and sensation.
EMG confirms carpal tunnel syndrome on the right. This is of sensorimotor type and I have organised some night splinting for him and will review. I have given him a neck care chart.”
Ms Ellem, reported to Dr Ahmed on 4 June 2007 as follows:
“Thank you for referring Andrew.
There has been a slow response to treatment with easy aggravation of symptoms. With so many areas injured it is easy to aggravate any one of them.
The wrist pain and numbness have not changed. Initially it was considered that falling onto his hand could have caused CT [carpal tunnel] of the wrist – however the EMG by Dr Rail was –ve [sic, negative] & symptoms are not resolving. Due to the disc protrusions in his C/S, perhaps we will have to consider that the C/S is the cause. I would like to recommend he be seen by Dr M Sheridan at Liverpool for an opinion to determine the future approach.
Your advice re ongoing care would be much appreciated.”
On 4 June 2007, Dr Ahmed referred Mr Bryce to Dr Sheridan, neurosurgeon. The hand written referral note reads, so far as is relevant:
“Injury to lower thoracic area.
R – lower chest pains
after af
ter falling fromchair
tocollapsed – whileleaning to right on
R – R armrest
12.3.07
Andrew has been in pain
since
PH Lumbar L5-S1
Discectomy & fusion
Allegies Sept 2002
NIL”
Dr Rail reported to the insurer on 8 June 2007:
“In response to your letter dated 11th May 2007.
a)Mr Bryce’s injuries consisted of an arm and neck strain with some mild cervical nerve irritability through C7 and C8.
b)The carpal tunnel syndrome is unrelated to the incident and was presumably pre-existing the fall.
c)The fall was responsible for his arm problems and tingling through the arm. It is also responsible for his neck problem which are his most significant issues.
d)There is no suggestion that he has had a previous injury causing his complaint.
e)Recovery from carpal tunnel is not the major factor here. He should recover over the next four to six weeks from his mild cervical radicular picture.
f)The only external factor outside of employment that contributed to his condition is the carpal tunnel syndrome which is being treated.”
Dr Ahmed reported to the insurer on 15 June 2007. Unfortunately, the letter to which he was responding is not in evidence and, as some of the doctor’s responses appear inconsistent, it is appropriate that I set out his letter in full:
“Please find the answer to your request on the above patient.
(a)Accident date 12.3.07
Armchair rest collapsed while talking to a colleague causing sudden jerking movement of the thoracic part of the spine.
Andrew has been experiencing mid to lower thoracic pain radiating to the right side of the lower chest.Diagnosis – I am not sure about the exact diagnosis at this stage. He is referred to Neurosurgeon Dr Sheridan at Liverpool.
Prognosis – It is difficult to predict the long term prognosis at present.
(b) The initial symptoms were pains in the right side of the body and mid thoracic area radiating to the right arm and right hand. Continuing symptoms upper and mid thoracic and right side of chest pain.
(c) Right carpal tunnel syndrome as diagnosed by Dr D Rail was an incidental finding and is NOT related to the accident on 12.3.07.
(d) Yes, I believe Andrew’s employment seems to be a most significant factor for the back and chest pain. But not the Carpal Tunnell [sic].
(e) It is reasonable to ask for x-ray of the right side of the chest to rule out any fracture. It would also be reasonable to ask for CT Scan of the upper thoracic spine.
(f) His symptoms of right sided chest pains started after the accident on 12.3.07.
(g) No, Andrew has not suffered previous injuries to the right forearm and lower ribs to the best of my knowledge.
(h) Time frame for pre-injury duties – It is difficult to accurately predict a time frame at present.
(i) Treatment so far is mainly in the form of physiotherapy and analgesics. He is referred to Neurosurgeon Dr Sheridan.
(j) To the best of my knowledge, I am not aware of any factors outside of his employment that could cause his symptoms.
(k) Unfortunately I am unable to predict the future outcome at this time frame for return to work.”
Mr Bryce saw Dr Sheridan on 4 July 2007. He arranged an MRI scan of the cervical and thoracic spine on 3 August 2007. Under “Indication”, the report recorded “Neck pain extending to the right arm, interscapular pain, previous fracture of T8”. The MRI scan confirmed the CT findings of protrusions at C5/6 and C6/7. It also revealed a minor reduction in vertebral height at T8, consistent with Mr Bryce’s previous history.
In his medico legal report of 13 November 2007, Dr Sheridan set out Mr Bryce’s past history relating to his back. In respect of the incident on 12 March 2007, Dr Sheridan recorded:
“He told me he was in a chair at work that collapsed in March and has had persisting interscapular pain and also lower back pain and pain radiating into his right arm ever since. He was doing some rehabilitation with his physiotherapist which was helping. He finds in particular the pain was disturbing his sleep at night. He has a CT scan of his thoracic spine which shows no acute injury. He has an old T8 wedge fracture but this is stable. I have organised for him to have a cervical and thoracic MRI scan to better assess what is going on.” (emphasis added)
After the MRI scan, Mr Bryce saw Dr Sheridan again on 7 August 2007. Dr Sheridan noted that the scan showed that Mr Bryce had “a disc protrusion at C5-6 and C6-7 causing some right sided nerve root compression consistent with his symptoms.” Mr Bryce complained of some right arm paraesthesia, numbness and weakness, which had not improved since the examination on 4 July 2007. Dr Sheridan recommended a cervical discectomy and fusion and sought approval from the insurer.
The insurer arranged for Mr Bryce to be examined by Dr Davies, neurosurgeon, on 23 August 2007. He recorded that Mr Bryce was leaning on the right-sided armrest of a chair when, as he turned to his side, the armrest collapsed and he suddenly fell to the right side but managed not to fall off the chair. The doctor added:
“He said his body was jerked to the right side and he jumped up fairly quickly. He was immediately aware of low back pain and some pain down both legs. There is a previous history of back and leg symptoms (see below). He thought that he had aggravated his pre-existing low back problem. He was able to finish his normal shift that day. He thinks he then had a couple of rostered days off and he saw his GP either the next day or the day after. Physiotherapy treatment was instituted and his physiotherapist told him that he had a ‘locked sacroiliac joint’ on the right side. Physiotherapy was beneficial and he said that his back pain settled down to its usual chronic state. He then became aware of what he described as a knot-like feeling in his mid-back region and pins and needles in the third and fourth fingers of the right hand. He thinks these symptoms came on within a few weeks of the work incident on 12.3.07. With the passage of time, the tingling spread to involve the whole of the right hand. He also noticed the onset of some tenderness in his neck about four weeks or so after the original incident.”
Dr Davies also noted the referral to Dr Rail to investigate Mr Bryce’s right arm symptoms and was aware that Dr Sheridan had recommended surgery.
In respect of Mr Bryce’s pre-existing back symptoms, Dr Davies noted the surgery in 2002 and that Mr Bryce was troubled by chronic low back pain and some leg symptoms prior to the incident in March 2007. Mr Bryce was being assessed for possible spinal cord stimulation for his ongoing low back pain prior to the March 2007 incident. The doctor listed Mr Bryce’s “current medications” as: epilim (“two tablets tds”), avanza and norspan patches and noted that he was “on all these medications prior to the incident in March 2007” (page three).
Dr Davies recorded that Mr Bryce thought he had a few days off work after he first saw his general practitioner after the incident and then returned to his pre-injury duties. He had further time off in May (six days) and in June (four days) because of symptoms in his right arm and pain in his thoracic spine.
Under “Clinical History” on page six of his report, Dr Davies recorded that “as the exacerbation of these pre-existing symptoms [in the back and leg] settled, he became aware of tightness and tenderness in his neck and some pins and needles in the third and fourth fingers of the right hand”.
Under “Your opinion in relation to the worker’s condition and rationale for the opinion”, Dr Davies said:
“There is no history of acute neck pain following the incident described or of any pain around the right shoulder. These symptoms appear to have developed at some later stage, as do the sensory symptoms in his right upper limb. It is certainly consistent that the subject injury could have caused an acute exacerbation of his previous thoracic and lumbar spine problems and it could have caused an acute injury to the cervical spine as a result of sudden jerking in the cervical spine, but there is no history to suggest the acute onset of any neck pain or upper limb symptoms following the subject injury.
He was subsequently diagnosed with a right carpal tunnel syndrome but this does not relate to his employment…..It is possible that some of his right upper limb symptoms may be arising from compression of the right C7 nerve root. His X-rays show evidence of right-sided disc protrusions at the C5/6 and C6/7 levels. I think it is very unlikely that these disc protrusions occurred as a direct consequence of the subject injury as there is no history to suggest any neck pain or arm symptoms immediately following the injury and these symptoms all appear to have come on several weeks or months later. I also think it is extremely unlikely that he would have sustained disc protrusions at two levels as a consequence of the injury described. It is possible that he could have developed an acute disc protrusion at a single level but, given the absence of any neck pain or arm symptoms immediately after the subject incident, I think it is unlikely that this occurred. It is possible that he has just developed a spontaneous disc protrusion at the C6/7 level.”
Dr Davies accepted that the work incident caused an acute exacerbation of his previous thoracic and lumbar spine injuries, but that exacerbation had resolved. He also accepted that, if surgery was to be performed, it would be reasonable to undertake a two level procedure.
Given Dr Davies’ opinion, the insurer declined to meet the cost of the surgery. Mr Bryce proceeded in any event and the operation was performed on 5 October 2007. At review on 19 October 2007, Dr Sheridan recorded that Mr Bryce had an excellent result from the surgery and that most of his arm pain had resolved.
On causation, Dr Sheridan said:
“I believe this patient’s current injury in his neck with disc protrusion is the result of the fall that he had and not due to his previous lower back injury.”
THE ARBITRATOR’S REASONS
After reviewing the evidence the Arbitrator noted, in her Statement of Reasons for Decision (‘Reasons’):
(a)Dr Davies gave no explanation as to what caused the disc protrusion at C5/6 nor as to why it was any more likely that disc protrusions will appear spontaneously at two levels than after a fall which he admitted could possibly have caused a disc protrusion at one level (Reasons, paragraph 26);
(b)Mr Bryce is a relatively young man and Dr Davies did not “seem to attribute the spontaneous appearance of the cervical disc injuries to age related degeneration or name any other factor which would make a spontaneous appearance more likely than injury after a fall” (Reasons, paragraph 26);
(c)the medical reports did not make it clear when Mr Bryce first mentioned his neck/arm symptoms, but by May 2007 Dr Ahmed had ordered a CT scan of the neck (which was done on 5 May 2007) and Dr Rail was concerned about the “involvement of the cervical spine” by this time as he had prescribed a “neck care chart” (Reasons, paragraph 28);
(d)Mr Bryce was on quite a lot of medication for his back prior to 12 March 2007 and there was no report that the medication was increased after the injury and before he had physiotherapy (Reasons, paragraph 29);
(e)“the effect of his medication with the masking effect of the flare up of pain in the lumbar spine was a sufficient explanation for Mr Bryce’s not immediately complaining of neck pain after the fall” (Reasons, paragraph 30);
(f)at no stage did Mr Bryce claim that his neck pain was severe. Dr Davies only noted a complaint of “some tenderness over the paraspinal muscles bilaterally in the lower cervical spine” (Reasons, paragraph 31);
(g)as the physiotherapist said, with so many areas injured it is easy to aggravate any one of them and no doubt difficult to say which part hurts at any time (Reasons, paragraph 31);
(h)Mr Bryce clearly reported his other arm symptoms of tingling, pain and numbness before May 2007, as he was referred to Dr Rail who thought it was carpal tunnel syndrome (but also gave him a neck chart) prior to his report of 8 May 2007 (Reasons, paragraph 32), and
(i)there was no evidence of any pre-existing condition to explain the cervical disc protrusions and resulting symptoms in the arms (Reasons, paragraph 33 (wrongly numbered “31”)).
The Arbitrator then summarised her findings as follows:
· “I find that all the medical evidence supports the proposition that the incident on the 12 March 2007 was of a nature that could possibly have caused a cervical disc protrusion at least at one level.
· I find on the balance of probabilities that it is more likely that the incident of 12 March 2007 caused cervical disc protrusions on two levels than that these appeared spontaneously on two levels in the weeks after the injury in a man of the applicant’s age.
· I find there is no evidence of any pre-existing condition to account for the injury to the cervical spine.
· I find that the strong medication taken by Mr Bryce and the exacerbation of his chronic lower back pain could have masked the neck symptoms.
· I find that Mr Bryce was reporting problems with his mid back area and arms within a short time of the fall as evidenced by the referral to Dr Rail and his investigations for carpel tunnel.
· I find that the opinions of the Applicant’s treating doctors as to the causation of the cervical spine injury are preferable to that of the Respondent’s doctor and that Dr Davies explanation of a spontaneous disc bulge at C6/7 shortly after the fall in March 2007 leaves too much to be explained.
· I find that on the balance of probabilities the work related incident of the 12 March 2007 was causative of the injury to Mr Bryce’s cervical spine.”
SUBMISSIONS
The Department has filed three documents on appeal. First, the appeal filed on 25 June 2008, second, submissions filed in purported reliance on Practice Direction No 6 on 18 August 2008 and, third, further submissions on 23 September 2008 in respect of the application to extend time to appeal. The ‘submissions’ attached to the appeal on 25 June 2008, provided no more than generalised allegations of error with no attempt to provide any reasoned argument in support. That document did not comply with Commission’s procedures, as it did not properly identify the grounds of appeal or make submissions in support of those grounds. The Department provided no proper submissions in support of the substantive appeal until it filed its submissions on 18 August 2008.
Whilst the second submissions purport to have been filed “pursuant to Practice Direction No 6”, which permits the filing of supplementary submissions following receipt of the transcript, they make only one reference to the transcript and are clearly the Department’s main submissions in support of the appeal. As a result, the Department has improperly used Practice Direction No 6 to delay the preparation and filing of its submissions in support of the appeal. That tactic, whether deliberate or through inadvertence, is unacceptable and must not continue. Parties are required to prepare their grounds of appeal and submissions in support and to attach them to their appeal. In the event that “supplementary submissions” are required after receipt of the transcript, either party is at liberty to file such submissions within 28 days of the date of the Registrar’s letter enclosing a copy of the transcript. The Department’s submissions of 18 August 2008 were not “supplementary submissions”, but were the only relevant submissions it filed dealing with the substantive issues on appeal.
The Department submits:
(a)the only opinion properly supported by proven assumptions and correct analysis was that of Dr Davies and it should be preferred to the evidence relied on by Mr Bryce;
(b)there was no evidence as to whether and to what extent Mr Bryce was medicated on 12 March 2007;
(c)there was no evidence as to the capacity of medication and lumbar pain to mask acute neck pain caused by a traumatic disc injury;
(d)it was unclear from Dr Sheridan’s report whether Mr Bryce was using analgesic medication for his chronic lumbar problems immediately before 12 March 2007. Whilst Dr Davies recorded the use of medication prior to the March incident, he did not record the dosages or the parts of the body to which topical medication was applied. Nor did he record a history of Mr Bryce using any of them at the time of the incident on 12 March 2007;
(e)on balance, Mr Bryce was using analgesic medication from time to time up until March 2007, but evidence should have been adduced that Mr Bryce was using them at the time of the work incident and to support the “medical hypothesis of masking of acute neck pain”. There was no evidence as to the affect of the analgesia being taken nor to support the proposition that the lumbar pain would mask cervical pain which would otherwise be sufficient to support a diagnosis of an acute cervical injury. The Arbitrator’s finding on this issue, in the absence of such evidence, constitutes an error of law;
(f)Ms Ellem did not say it is “difficult to say which part hurts at any time” (Reasons, paragraph 31) and the Arbitrator’s conclusion was reached without evidence;
(g)the Arbitrator erred when she found that the strong medication and exacerbation of lumbar pain “could” have masked the neck symptoms, as such a finding was not in accord with the standard required of her by law;
(h)the errors identified above relating to the issue of contemporaneous neck pain led the Arbitrator to reject Dr Davies’ evidence;
(i)there was no reasoned evidence to rebut Dr Davies’ evidence that it was extremely unlikely Mr Bryce would have sustained disc protrusions at two levels as a consequence of the incident at work and the Arbitrator offered no reasoned analysis as to why she rejected it;
(j)there was no reason as to why the opinions of the treating doctors as to causation were preferable to Dr Davies’ opinion, and
(k)there should be an award for the Department.
Mr Bryce submits:
(a)the finding as to causation was available on the evidence. Mr Bryce admitted to some modest delay in noticing the onset of the symptoms in his neck following the injury on 12 March 2007. Notwithstanding the delay, Mr Bryce’s medical evidence traversed the history, noted the delay and supported the claim as to a connection (see Dr Sheridan, Dr Rail and Dr Ahmed);
(b)the Commission accepted Dr Sheridan’s opinion as to causation over Dr Davies. That conclusion was open on the evidence, especially given the conclusions of the Commission as to the possible masking effect of medication taken at the time and the absence of any other explanation as to the onset of the cervical spine symptoms in Dr Davies’ opinion;
(c)an appeal is not a rehearing and the Commission is not entitled to deal with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194; Building Licensing Board v Sperway Constructions (Sydney) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616). The current appeal does not recognise this distinction and does not establish any error such that the Commission would intervene on appeal;
(d)the evidence supported the Arbitrator’s conclusion that the medication had a masking effect. The Commission is a specialist tribunal;
(e)the fact that the incident was summarised as a “fall” is not material and does not establish error. The reasons for decision must be read as a whole, and
(f)the Arbitrator was entitled to rely on the reports of the physiotherapist and the neurologist.
The submissions concluded that if the Department was allowed to provide further written submissions in addition to those attached to its appeal filed on 25 June 2008, Mr Bryce also sought the right to make submissions in reply. As set out above, the Department filed further submissions on 18 August 2008. As the Department’s unsatisfactory conduct potentially disadvantaged Mr Bryce in the preparation of his submissions, I issued a Direction on 16 September 2008 giving him the opportunity to file submissions in response to the Department’s submissions of 18 August 2008 and on the issue of extending time to appeal. For reasons not explained, Mr Bryce only filed submissions dealing with the extension of time issue.
NATURE OF A REVIEW
Mr Bryce’s submissions as to the nature of a review are inconsistent with recent authority. The Court of Appeal considered the nature of a ‘review’ under section 352 of the 1998 Act in Aluminium Louvres & Ceilings Pty Limited 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 on 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 the 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 The King principles” was described by McColl JA 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 a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 (‘Chemler’) where Spigelman 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 the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a 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.”
The “well established line of authority” referred to by Spigelman CJ was considered in detail in Ranvet Pty Ltd v Vasilevski [2008] NSWWCCPD 81 at [32] to [55] inclusive.
The nature of a review was also considered in Cook v Midpart Pty Ltd t/as McDonalds Forster & anor [2008] NSWCA 151 and Tan v National Australia Bank Limited [2008] NSWCA 198.
I intend to apply the principles discussed in the above authorities. Essentially, I am required to conduct a “review on the merits” to decide whether the original decision is wrong or, to decide, “what is the true and correct view” (per Spigelman CJ in Chemler).
DISCUSSION AND FINDINGS
Counsel for Mr Bryce acknowledged that there was a delay between the work incident and the onset of his neck and arm symptoms, but endeavoured to overcome that difficulty with the following submission (at T9.45):
“So there’s a delay in onset, which the applicant recognises, but, of course, the real issue is just taking one step back and looking at this gentleman’s ‑ the injury that happened, and it’s a significant jolting injury down to the right side, the side upon which he becomes symptomatic by way of radiculopathy. There’s a significant jolting injury, which, first of all, the applicant perceives as a quite significant and disabling injury to the lower back and the thoracic back, which, on the applicant’s case, was masking the symptomatology that he had to [sic] the neck, and having dealt with the acute pain in the lower back and the thoracic spine, the applicant then became aware of the radiculopathy, the pins and needles and the associated neck pain.”
Counsel also referred (at T11.40) to the “masking effect of the acute lower and thoracic back pain”.
Nowhere did counsel for Mr Bryce submit that the effect of Mr Bryce’s medication, together with the masking effect of the flare up of the back pain, was a sufficient explanation for Mr Bryce not immediately complaining of neck pain after the fall. Counsel relied solely on the ‘masking’ as a result of the increased back pain. To the extent that the Arbitrator relied on the “effect of the medication with the masking” because of the back pain (Reasons, paragraph 30), the evidence does not support her conclusion. Whilst it is true that Mr Bryce was on medication for his back pain prior to 12 March 2007, there is no evidence that that medication played any role in explaining the delay in the complaint of neck and arm symptoms.
Mr Bryce was referred for physiotherapy on or about 19 March 2007. Ms Ellem’s report of 4 June 2007 provides no assistance in determining when Mr Bryce’s neck and arm symptoms commenced, though he did complain to her of them (see Mr Bryce’s statement, paragraph 22). Her report did not set out the history, Mr Bryce’s complaints or her findings on examination. Her reference to “With so many areas injured it is easy to aggravate any one of them” provided no assistance on whether Mr Bryce injured his neck on 12 March 2007, and did not support the Arbitrator’s statement (at paragraph 31 of her Reasons) “and no doubt difficult to say which part hurts at any time”. Mr Bryce did not give evidence to that effect and to the extent that the Arbitrator based her decision on this statement, the evidence did not support it.
Whether these errors led the Arbitrator to reject Dr Davies’ evidence, as the Department submits, is not clear. There were several reasons why the Arbitrator was not persuaded by Dr Davies’ evidence. In particular, whilst Dr Davies said it was possible that Mr Bryce developed a spontaneous disc protrusion at the C6/7 level, he offered no explanation for the protrusion at C5/6. Further, as the Arbitrator correctly observed, there was no other plausible explanation for the pathology found on the MRI scan. As a result of his prior back injury, Mr Bryce had not been active in sport for several years and there was no evidence that he had engaged in any other activities that may have caused the condition in his neck. Nevertheless, Mr Bryce carried the onus of proof and he faced considerable difficulties in discharging that onus in circumstances where he acknowledged that he experienced no neck or arm symptoms until some time well after 12 March 2007, and his expert evidence did not adequately deal with that fact.
Given the errors identified, however, it is necessary for the matter to be re-determined. I have given careful consideration to whether I should conduct that re-determination or the matter should be remitted to a different Arbitrator for that purpose. As no oral evidence was called at the arbitration and no credit issues arise, I am in as good a position to conduct the re-determination as an Arbitrator and that is the course I propose to adopt.
I do not accept Mr Bryce’s submission that the finding as to causation was available on the evidence and that, notwithstanding the delay in the onset of his neck and arm symptoms, his medical evidence traversed the history, noted the delay, and supported the claim. Mr Bryce’s evidence did not accurately record the history and did not adequately note, or deal with, the delay in the onset of his symptoms.
Whilst Mr Bryce stated that he brought his “conditions” to the attention to Dr Ahmed, it is not known when that was done. It was conceded (at T6.53) that Mr Bryce’s initial WorkCover certificate from Dr Ahmed (not in evidence) only referred to the lower back injury. On referral from Dr Ahmed, a cervical and thoracic CT scan was performed on 5 May 2007, but it is not known when that referral was made.
Dr Ahmed’s report of 15 June 2007 is confusing, inconsistent with other evidence and generally unpersuasive on the critical issue of whether Mr Bryce injured his neck at work on 12 March 2007. At paragraph (a), Dr Ahmed recorded the incident of the chair collapsing, that it caused a “sudden jerking movement of the thoracic part of the spine”, and of Mr Bryce experiencing mid to lower thoracic pain radiating to the right side of the lower chest. That history is not consistent with Mr Bryce injuring his neck on 12 March 2007. Dr Ahmed then noted at paragraph (b), “The initial symptoms were pains in the right side of the body and mid thoracic area radiating to the right arm and right hand” (emphasis added). That history is inconsistent with Mr Bryce’s statement that, whilst he felt a severe jerk to his whole right side, the “first pain” he recalled was in his lower back and right leg. It is also inconsistent with Dr Ahmed’s referral to Dr Sheridan where he made no reference to any neck injury or arm symptoms resulting from the incident on 12 March 2007 (see [39] above). At paragraph (d), Dr Ahmed said that he believed Mr Bryce’s employment “seems to be a most significant factor for the back and chest pain. But not the Carpal Tunnell [sic]” (emphasis added). This answer gives no support to the claim that Mr Bryce injured his neck or cervical spine on 12 March 2007, but strongly suggests that he did not.
Dr Rail’s first report was addressed to Dr Ahmed on 8 May 2007. His history was of a “fall at work on 10th March” when his “chair collapsed and he landed on his right side”. That history was incorrect. Mr Bryce’s chair did not collapse and he did not land on his right side. The right armrest gave way resulting in Mr Bryce jerking his whole right side. Next, Dr Rail recorded that Mr Bryce “suffers from bruising and pain through the right arm”. That is also incorrect. Mr Bryce gave no evidence of suffering bruising in his right arm. The evidence is that on an unknown date after 12 March 2007, Mr Bryce experienced pins and needles or a lack of sensation in his ring and middle fingers on his right hand. Dr Rail then referred to Mr Bryce “more recently” developing forearm tingling and residual numbness over “D3/4” and his neck being a “little painful”. Whilst Dr Rail gave Mr Bryce a neck care chart, there is no suggestion in the report of 8 May 2007 that Mr Bryce had injured his neck at work on 12 March 2007.
Dr Rail addressed his second report (dated 8 June 2007) to the insurer, but the letter to which it responded is not in evidence. This report did not set out the history or findings on examination. Point (a) in the report seems to accept that Mr Bryce’s injuries on 12 March 2007 (wrongly referred to by the doctor as 10 March 2007), “consisted of an arm and neck strain with mild cervical nerve irritability through C7 and C8”. He accepted that the “fall was responsible for his arm problems and tingling through the arm” and for his neck problem. I infer that Dr Rail based his opinion on the history set out in his earlier report of 8 May 2007. That history was incorrect in that:
(a)the chair did not collapse;
(b)Mr Bryce did not land on his right side, and
(c)Mr Bryce did not suffer from bruising and pain through the right arm at the time of the incident, or immediately after it.
Whilst the inaccurate history of the chair collapsing is not of critical importance, the other matters are significant because they go the critical issue of the nature and extent of Mr Bryce’s injury on 12 March 2007 and mean that Dr Rail’s opinion is of limited probative value in the overall assessment of the claim (Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (‘Makita’). Mr Bryce made no complaints on or immediately after 12 March 2007 of experiencing symptoms consistent with him having suffered a strain of his neck or right arm on that day. Dr Rail’s inaccurate history did not provide a ‘fair climate’ for the acceptance of his opinion (Makita at 731-732; Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510 and Brady v Commissioner of Police (2003) 25 NSWCCR 58 at 76).
This leaves the evidence of Dr Sheridan, the treating neurosurgeon. His opinion is dependent on the incorrect history (set out fully at [43] above) that “ever since” the chair collapse at work in March 2007, Mr Bryce has had persisting interscapular pain, lower back pain, and “pain radiating into his right arm”. Dr Sheridan noted that the CT scan of 5 May 2007 showed no acute injury and he therefore arranged for an MRI scan, which showed disc protrusions at C5/6 and C6/7 causing right-sided nerve root compression “consistent with his symptoms”. Mr Bryce complained of some right arm paraesthesia, numbness, and weakness, which had not improved since the previous examination in July 2007. Dr Sheridan’s only comment on causation was that he believed Mr Bryce’s “current injury in his neck with disc protrusion is the result of the fall that he had and not due to his previous lower back injury”. Leaving aside the history of the chair collapsing, which was not critical, the history of Mr Bryce having pain radiating into his right arm “ever since” the chair incident was critical and did not provide a ‘fair climate’ for the unreserved acceptance of Dr Sheridan’s opinion (Makita at 731-732).
The Department relies on the evidence of Dr Davies. Dr Davies is the only medical expert in the case who took a detailed history of the incident concerned and Mr Bryce’s symptoms immediately following that incident. His history (set out at [45] above) is substantially consistent with Mr Bryce’s evidence: as he turned, the armrest collapsed and Mr Bryce suddenly fell to the right side, but managed not to fall off his chair. His body was jerked to the right side and he jumped up fairly quickly and was immediately aware of low back pain and some pain down both legs. He saw a physiotherapist who told him he had a “locked sacroiliac joint” on the right side. The physiotherapy was beneficial and his back pain settled down to its usual chronic state. He then became aware of a knot-like feeling in his mid-back and pins and needles in the third and fourth fingers of the right hand, which he thought came on within a few weeks of the work incident. He noticed the onset of some tenderness in his neck about four weeks or so after the original incident.
Dr Davies was aware of the diagnosis of carpal tunnel syndrome and the results of the CT scan of 5 May 2007 and the MRI scan of 3 August 2007. He was also aware that Mr Bryce had not played any sport for about 10 years because of his prior back injury.
Whilst Dr Davies conceded that an incident such as occurred on 12 March 2007 could cause an acute injury to the cervical spine, there was no history to suggest an acute onset of any neck pain or arm symptoms immediately after the incident and, therefore, it was “extremely unlikely” that Mr Bryce would have sustained disc protrusions at two levels as a consequence of the work incident. Dr Davies also conceded that Mr Bryce could have developed an acute disc protrusion at a single level, but in the absence of any neck pain or arm symptoms immediately after the incident, he thought it was unlikely that that occurred. He said it was possible that Mr Bryce developed a spontaneous disc protrusion at the C6/7 level, but offered no explanation for the protrusion at C5/6. Whilst Dr Davies’ silence as to the cause of the protrusion at C5/6 is unhelpful, his conclusion, based on a substantially accurate history of the incident and the delayed onset of the neck and arm symptoms, is both logical and compelling.
Dr Davies’ history closely accorded with Mr Bryce’s evidence. For that reason his opinion is entitled to considerable weight. On the other hand, the evidence of Drs Ahmed, Rail and Sheridan is based on incorrect or incomplete histories. Whilst Mr Bryce concedes a delay in the onset of his neck and arm symptoms, none of his treating doctors deal with that delay and its significance. In these circumstances it is difficult to accept their evidence over Dr Davies’ evidence and I prefer the evidence of Dr Davies.
Mr Bryce’s argument that his neck and arm symptoms had been ‘masked’ by his increased back pain immediately after the incident is unsupported by any medical evidence and, in the absence of such evidence, is unpersuasive. In any event, Mr Bryce did not feel “any extreme pain” immediately after the incident and remained at work until 14 March 2007. Therefore, whilst I accept that Mr Bryce’s main concern on 12 March 2007 was his back, it seems unlikely there was any ‘masking’ on that day as a result of increased back pain.
I do not accept the submission that the Commission, as a specialist tribunal, is entitled to conclude that Mr Bryce’s medication had a ‘masking’ effect such that he did not become aware of his neck and arm symptoms until sometime after 12 March 2007. There is no probative evidence in support of that proposition. Whilst I accept that Mr Bryce was taking medication for his back up until March 2007, there is no evidence that that medication provided an explanation for the absence of a complaint of neck or arm symptoms until several weeks after 12 March 2007. In the absence of such evidence, it is not open to the Commission to speculate on that issue.
Mr Bryce called no persuasive evidence dealing with the critical issue in the case, namely, given the delay in the onset of his neck and arm symptoms after the incident on 12 March 2007, was it more probable than not that he injured his neck at work on that day. In the absence of such evidence, and in light of the inaccurate histories noted above and Dr Davies’ compelling evidence, that omission is of critical importance.
CONCLUSION
It follows that, having conducted a review on the merits (per Spigelman CJ in Chemler), I am not satisfied that Mr Bryce injured his neck or cervical spine at work with the Department on 12 March 2007. As a result, the Department is entitled to an award in its favour.
DECISION
The Arbitrator’s determination dated 27 May 2008 is revoked and the following orders made:
“1.Award for the Respondent employer.
2.Each party is to pay his or its own costs of the arbitration proceedings.”
COSTS
Each party is to pay his or its own costs of the appeal.
Bill Roche
Deputy President
16 October 2008
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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