Department of Education and Training v Ireland
[2008] NSWWCCPD 134
•11 November 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Department of Education and Training v Ireland [2008] NSWWCCPD 134 | |||||
| APPELLANT: | Department of Education and Training | |||||
| RESPONDENT: | Maree Ireland | |||||
| INSURER: | NSW Treasury Managed Funds No 1 | |||||
| FILE NUMBER: | WCC3337-08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 23 July 2008 | |||||
| DATE OF APPEAL DECISION: | 11 November 2008 | |||||
| SUBJECT MATTER OF DECISION: | Onus of proof; weight of evidence. | |||||
| PRESIDENTIAL MEMBER: | President, Judge Keating | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | TurksLegal | ||||
| Respondent: | Higgins & Higgins | |||||
| ORDERS MADE ON APPEAL: | Paragraphs 1 and 2 of the Arbitrator’s Determination dated 23 July 2008 are revoked and the following orders made: 1. (a) Award for the Respondent in respect of injury to the back. (b) The matter is remitted to the Registrar for referral to an AMS for assessment of the Whole Person Impairment in respect of the left upper extremity arising from injuries sustained on 4 November 2004. 2. The Respondent is to pay the Applicant’s reasonable and necessary medical expenses pursuant to section 60 of the 1987 Act, except in respect of injuries to the back. Paragraph 3 of the Determination is confirmed. Each party to pay her or its own costs of the appeal. | |||||
BACKGROUND TO THE APPEAL
On 15 August 2008 the Department of Education and Training (‘the Appellant/the Department’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 23 July 2008.
The Respondent to the Appeal is Maree Ireland (‘the Respondent/Worker’).
Ms Ireland was employed by the Department at Cowra High School performing clerical duties.
On 4 November 2004, Ms Ireland alleges that she injured her left arm and shoulder and her lumbar spine when she tripped and fell collecting mail from the post office. On 6 May 2008, Ms Ireland filed an ‘Application to Resolve a Dispute’ in the Commission claiming compensation for payment of medical expenses and lump sum compensation under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of 7 % Whole Person Impairment (‘WPI’) for the lumbar spine injury, and 4% WPI for the left shoulder injury and $9,000.00 pursuant to section 67 for pain and suffering. The Worker also sought a referral for assessment by an Approved Medical Specialist, for a WPI assessment for the purposes of a work injury damages threshold determination, under section 293 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The Department, by its solicitors, filed a ‘Reply’ on 27 May 2008, disputing liability in respect of the alleged injury to the lumbar spine specifically, and generally disputing that the Worker had suffered any permanent impairment as a result of the injuries alleged, or to the degree claimed. Ms Ireland’s entitlement to compensation pursuant to section 67 was also in dispute. Further, it was claimed that a deductible proportion was applicable under section 323 of the 1998 Act. The Department also claimed that the Commission had no jurisdiction to make an order under section 60 because the claim under section 60 had not been particularised.
The matter was listed for arbitration hearing in Cowra on 30 June 2008 at which time the parties agreed that the only issues for determination by the Commission were:
1) Whether the Worker had injured her lumbar spine in the fall on 4 November 2004, and
2) Whether the Commission had jurisdiction to determine the claim under section 60.
The parties also filed written submissions after the hearing date and the Arbitrator issued a Certificate of Determination and a written Statement of Reasons for Decision on 23 July 2003. It is from this decision that the Department now seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 23 July 2008 records the Arbitrator’s orders as follows:
“The Commission determines:
1I find the Applicant has sustained an injury to her lumbar spine as a consequence of the frank injury of 4 November 2004 whilst in the employ of the Respondent and as such the Registrar is requested to refer the Applicant to an Approved Medical Specialist for a determination of the Whole Person Impairment flowing from that injury. There being no issue in relation to the injury to the Applicant’s left upper extremity the Applicant ought also be referred by the Registrar to an AMS for a determination of the Whole Person Impairment applicable to the left upper extremity flowing from the injury of 4 November 2004.
2The Respondent to pay the Applicant’s reasonable and necessarily incurred expenses pursuant to Section 60.
3The Respondent to pay the Applicant’s costs as agreed or assessed.”
ISSUE IN DISPUTE
The issue in dispute in the appeal is whether the Arbitrator erred in law in finding, on the available evidence, that the Worker sustained an injury to her lumbar spine when she fell on 4 November 2004.
PRELIMINARY MATTERS
Transcript
This matter was listed for an arbitration hearing in Cowra on 30 June 2008. The usual practice is for the Arbitrator hearing the matter to record the proceedings and submit a soundcard to the Commission so that a transcript can be prepared. The soundcard for the arbitration hearing could not be located and as a consequence a transcript of the proceedings has not been prepared.
On 24 October 2008 I issued a Direction to the parties in the following form:
“This matter was listed for arbitration hearing on 30 June 2008 in Cowra. A sound recording of the hearing was apparently made however the soundcard on which the recording was made has not been located and as a consequence a transcript of those proceedings cannot be prepared.
It would appear from the Arbitrator’s Statement of Reasons dated 23 July 2008 that no oral evidence was given at the hearing. Further, I note after the hearing date and prior to the issuing of the Arbitrator’s decision, each part filed and served written submissions.
Given the absence of a transcript I wish to afford the parties an opportunity to make further submissions on appeal.
The following directions are made in this matter:
1.On or before 4 pm on 7 November 2008, the Appellant is to file and serve any further submissions on the appeal, including submissions as to whether the appeal can proceed in the absence of a transcript.
2.On or before 4 pm on 28 November 2008, the Respondent is to file and serve any further submissions on the appeal, including submissions as to whether the appeal can proceed in the absence of a transcript.”
In response to the Direction, Ms Ireland’s solicitors filed and served submissions on 3 November 2008 stating that Ms Ireland consented to the appeal proceeding in the absence of the transcript and did not seek to make any further submissions.
The Department’s solicitors also filed and served submissions dated 3 November 2008 which assisted greatly in providing an explanation for the absence of a soundcard and in turn a transcript.
It transpires the arbitration did not proceed in Cowra on 30 June 2008 as scheduled, due to unforseen travel difficulties experienced by Counsel for one of the parties, which prevented him reaching Cowra in time to appear at the arbitration. Given the circumstances, the Arbitrator directed the parties to file and serve written submissions and he determined the matter after receipt of those submissions. The Department submits no evidence was taken by the Arbitrator on the hearing day and concurs with Ms Ireland’s submissions that the appeal can proceed in the absence of a transcript from the hearing day.
In the circumstances the absence of the sound recording and transcript is of no relevance to the issues for determination in this appeal.
I am therefore satisfied that I have before me all the evidence and submissions that were before the Arbitrator and that I can properly and fairly determine the appeal in the absence of a transcript from the arbitration.
On the papers review
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.
Leave
Time (section 352(4))
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 15 August 2008 within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Monetary thresholds (section 352(2)(a) and (b))
Section 352(2) provides:
“(2) The Commission is not to grant leave unless satisfied that the amount of compensation at issue on appeal is both:
(a)at least $5000.00 (or such amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.”
The Appellant submits that the compensation at issue on the appeal is referrable to the amount of compensation claimed in respect of the claim for 7% WPI for the lumbar spine totalling $8,750.00. Further, if the appeal is successful, the Worker would not be entitled to compensation under section 67 for pain and suffering in respect of her claim for lump sum compensation under section 66 in respect of the assessment of the left arm injury.
The Respondent Worker does not directly address the threshold requirements under section 352(2) in her submissions.
I accept the Appellant’s submissions that the amount of compensation at issue on appeal is greater than $5000.00, being $8,750.00 in respect of the claim under section 66 and the claim under section 67 in respect of $18,000.00 for pain and suffering.
No compensation has been awarded and as such the 20% threshold requirement in section 235(b) does not apply (see Mawsonv Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Interlocutory (section 352(8))
Leave to appeal cannot be granted if the decision appealed against is a decision of an interlocutory nature (see section 352(8) of the 1998 Act).
The Appellant submits that the Arbitrator’s decision that the Worker suffered an injury to the lumbar spine in the fall on 4 November 2008 was not a decision of an interlocutory nature. The Appellant relies on the decision of Deputy President Roche in P & O Ports Limited v Hawkins [2007] NSWWCCPD 87 (‘Hawkins’).
Ms Ireland made no submissions on this issue.
In Hawkins, Deputy President Roche held at [37(k)]:
“[G]iven the Commission’s objectives, it is not appropriate to deprive an unsuccessful party of the right to appeal to a Presidential Member in respect of a final decision on a matter that finally determines the parties’ rights on issues such as worker, injury, substantial contributing factor (or other issues that finally determine the parties’ rights) until all medical disputes have been assessed and determined under Part 7. Any order or determination by an Arbitrator on such issues should not be regarded as a matter that is a ‘preliminary or interim order of an interlocutory nature’, but should be regarded as a final order in which, provided the other thresholds in section 352 have been satisfied, leave to appeal will be granted.”
The Arbitrator’s determination that Ms Ireland suffered an injury to her back, during the course of her employment on 4 November 2004, is a decision that finally determined the parties’ rights as to the liability of the Department to pay the lump sum compensation claimed, pursuant to section 66 of the 1987 Act, in respect of the alleged injury to the back. In the circumstances I am satisfied the decision, the subject of this appeal, is not of an interlocutory nature.
Registrar’s function (section 352(1A))
Ms Ireland submits that pursuant to the provisions of section 352(1A) of the 1998 Act, the Registrar should not have permitted this appeal to proceed because the appeal is not properly brought as no legal, factual or discretionary error can be demonstrated (see Ross v Zurich Workers Compensation Insurance [2002] NSWWCCPD 7).
It is further submitted, “relevantly, the issue is not whether one agrees with the Arbitrator’s decision, but whether the Arbitrator’s decision was one that was reasonably available to him to arrive at based on the evidence” (see Swayne v Waverley Municipal Council (2005) 220 CLR 517).
The Department submit that this submission is misconceived and that the application for appeal is properly filed and based in law. I agree, that the submission is indeed misconceived. Section 352(1A) is in these terms:
“(1A) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that the requirements of this section and any applicable Rules and regulations as to the making of the appeal have been complied with.”
Rule 16.2 of the Workers Compensation Commission Rules 2006 is concerned with the procedures to be followed when lodging an appeal against an Arbitrator’s decision. The Registrar is given power in respect of any matter where any applicable rules and regulations as to the making of an appeal have not been complied with, to return the application to the party that lodged it, with a statement particularising the non-compliance.
The Registrar is to ensure that the application has attached to it a copy of the certificate of the determination of the dispute and must be satisfied that the application includes or has attached to it full details of:
(a) the arguments put in favour of review of the decision sought to be appealed against, and
(b) for the purposes of section 352(2) of the 1998 Act, the amount of compensation alleged to be at issue on appeal, and
(c) any new evidence in respect of which leave is to be sought, by the party lodging the application, in accordance with section 352(6) of the 1998 Act, and
(d) if the party lodging the application wishes to object to the matter of leave to make the appeal, or the appeal, being decided solely on the basis of the written application and any written notice of opposition lodged, the reasons for that objection.
Rule 16.2 then deals with other procedural matters concerning service of the appeal and the opposition, the lodging of certificates of service, and other procedural matters.
It is plain from these provisions that the function of the Registrar is purely procedural. There is no requirement for the Registrar to undertake any ‘gatekeeper’ function concerning the merits of the appeal before permitting it to proceed. This is, of course, in contrast to the functions of the Registrar under section 327(4) of the 1998 Act in respect of appeals from medical assessments where the Registrar does have a ‘gatekeeper’ role.
Whether the appeal has any merit on review is a matter for the Presidential Member to whom the appeal is allocated for determination, and is not part of the Registrar’s function or jurisdiction.
Leave to appeal is granted.
Fresh evidence
Neither party seeks to rely on fresh evidence.
REVIEW
The nature of a review was considered by the Court of Appeal in Aluminium Louvres and Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 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.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16 at [134]. 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.”
In a recent decision of Tan v National Australia Bank Limited [2008] NSWCA 198 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 to the matter before me.
EVIDENCE
Ms Ireland relied on a statement dated 2 May 2008. She stated that on 4 November 2004, she tripped on her way to work and landed on her outstretched hands and hit the left side of her head.
She stated at [5] of her statement that the injuries she sustained were as follows:
“Concussion, head injury, soft tissue injury to the left knee, grazing and soft tissue injury to the right knee, gravel rash to both palms and left hand, laceration to the right hand, I also notice pain in the left shoulder, both of my hands and my Lumbar spine.”
She attended general practitioners Drs Epps and Baker and was referred to Dr Kwa, orthopaedic surgeon, in June 2005 for “triggering” and tenderness of the right thumb extending into the right wrist. She underwent surgery to release the trigger thumb condition on 28 July 2005. Ms Ireland also stated that Dr Kwa examined her left shoulder on 9 August 2005 and suggested an x-ray and ultrasound.
The statement concluded with the Worker outlining her present ongoing symptoms as follows:
“Intermittent aching pain in the left shoulder, worse on driving, or repetitive use of the left arm, bending or twisting movements, overhead tasks or lying on my left side. Paraesthesia and numbness at the volar aspect of my left wrist, intermittent weakness in the left shoulder, paraesthesia and numbness at the volar aspect of the right wrist joint, intermittent aching pain in the Lumbar Spine region.”
The notification of incident/injury form signed by Mr Woodridge from Cowra High School on 5 November 2004, detailed the nature of the injury as:
“grazing to knee, hands, head plus MRI taken”
A medical certificate from Dr Epps dated 4 November 2004 noted that the Worker was unfit for work for one day due to a head injury.
A referral from Dr Baker, general practitioner, to Dr Kwa, hand and orthopaedic surgeon, dated 16 June 2005 noted that the Worker was referred with a number of problems. Principally, problems with her hand, particularly her right thumb, and that since the falling incident she had experienced a trigger thumb but had no signs of De Quervain’s tenosynovitis on examination. The doctor noted that following the fall Ms Ireland had undergone x-rays of her hands, which showed no fracture or bony trauma. Dr Baker also noted that in the falling incident Ms Ireland had struck the left side of her head and had undergone investigations and was continuing to experience headaches. Dr Baker considered the headaches were likely to be tension headaches noting that Ms Ireland had been under significant stress with the recent death of her husband from pancreatic cancer.
Dr Baker noted that the third problem Ms Ireland had was left sided leg pain, which Dr Baker believed was caused by trochanteric bursitis for which the doctor suggested steroid injections.
A WorkCover medical certificate from Dr Baker dated 7 July 2005 certified that Ms Ireland was unfit for work from 28 July 2005 to 16 August 2005 with a diagnosis of “triggering right thumb – tendonitis” following the fall outside the post office on 4 November 2004.
Ms Ireland also relied on three reports from Dr Kwa. In his report dated 24 June 2005, Dr Kwa noted on physical examination that Ms Ireland had marked tenderness in her thumb, triggering of the right thumb and a general tenderness over the radial aspect of her wrist. Dr Kwa recommended a steroid injection but because Ms Ireland said she was allergic to local anaesthetic Dr Kwa concluded that the main treatment option was surgical release. He recommended the surgery due to the fact that the triggering was worsening.
The postoperative report from Dr Kwa dated 29 July 2005, noted that Ms Ireland underwent a right trigger thumb release on 28 July 2005.
Dr Kwa prepared a further report dated 9 August 2005. He reported that Ms Ireland had progressed well following the surgery and that she wished to return to full duties. He certified her fit for full duties. Dr Kwa noted that she had also injured her left shoulder in the fall and had shoulder pain, which was controlled by taking Celebrex. After ceasing to take Celebrex the pain increased. Following examination of Ms Ireland’s shoulder, Dr Kwa was of the opinion she had a degree of rotator cuff dysfunction and suggested that she may require an x-ray and/or ultrasound, plus surgical intervention if her symptoms continued at a significant level.
Dr Jones’ report of 17 August 2005, from Bathurst radiology, reported on an x-ray of the left shoulder, which demonstrated no fracture of bony lesion and an ultrasound of the left shoulder, all tendons of the rotator cuff appeared normal, the biceps tendon also appeared normal, and there was no impingement of the supraspinatus tendon and no evidence of fluid in the subacromial bursa.
Ms Ireland relied on a medico-legal report from Dr Wallace, orthopaedic surgeon, dated 9 October 2007. Dr Wallace examined Ms Ireland on 7 September 2007. He obtained a history that on 4 November 2004, she tripped on an uneven footpath, falling forward onto her hands and knees and suffered abrasions to her forehead, left palm, pain in her left shoulder, both hands and lumbar spine. Ms Ireland stated that she reported the incident to her employer and was sent home, and on that day Dr Epps, a general practitioner, reviewed her. She underwent a CT scan of the head at Bathurst, which she reported was normal and she did not undergo any treatment. The report from this CT scan was not in evidence.
Dr Wallace noted that in December 2004 Ms Ireland’s husband died of cancer. She was reviewed by Dr Baker complaining of headaches, pain in her wrist and discomfort in her left hip, and was referred to Dr Kwa who diagnosed the right trigger thumb and undertook the release surgery in July 2005. Dr Wallace noted that in 2007 she continued to use Panamax medication on an intermittent basis, but had no further therapeutic intervention. He did however note that she was currently taking anti-depressant medication.
Dr Wallace recorded Ms Ireland’s present complaints as intermittent headaches, intermittent aching pain in her left shoulder, which worsened when driving and on repetitive use of the arm, overhead activities, and lying on her left side. She also complained of paraesthesia and numbness of her left wrist and weakness in her left arm. She made no complaint of pain or stiffness in the right thumb, but complained of pins and needles in her right wrist. She complained of no symptoms in her lower limbs but she did complain of intermittent aching in the region of the L5 level of the lumbar spine, without radiation. The back pain was evident in the morning and after vacuuming activities.
Dr Wallace noted that in November 2004 she had one day off work following the incident, but then returned to her pre-injury duties. She left the employ of the Department in January 2005 to take up a full time position in another organisation and at the time of his examination was working fulltime in clerical duties. In respect of home activities, Ms Ireland stated that she had some difficulty driving a motor vehicle for more than 60 minutes. She also had difficulty with vacuuming and she was unable to assist in home maintenance activities including mowing and gardening, but her leisure activities had not changed.
Dr Wallace made a diagnosis that as a result of her work related fall on 4 November 2004, she suffered a closed head injury, a rotator cuff strain to her left shoulder, ligamentous strain to the left wrist, soft tissue injury to the right hand with right trigger thumb and a musculo-ligamentous strain to the lumbar spine. She was treated conservatively with rest and analgesic medication, with the exception of the surgical intervention to release the right “trigger” thumb. Dr Wallace considered that she remained fit for her current pre-injury duties.
In a supplementary report dated 9 October 2007, Dr Wallace provided a whole person impairment assessment of 11% on the basis that she had a 4% WPI as a result of the left shoulder symptoms and 7% permanent impairment as a result of the lumbar spine.
Dr Holman, orthopaedic surgeon, prepared a medico-legal report on behalf of the Department at the request of GIO insurance dated 14 March 2008. Dr Holman obtained a consistent history of the falling incident on 4 November 2004 and that she had attended Dr Epps, who cleaned the abrasions and referred her for a cerebral CT scan, which was undertaken by Dr Neill in Bathurst and reported as normal. Ms Ireland stated that a number of weeks after the incident she felt stiffness in the right thumb and the right thumb began to trigger and she was referred to Dr Kwa.
Dr Holman also obtained a history that since the fall Ms Ireland had also experienced increase in pain and stiffness in the left shoulder and suffered from frequent headaches, had disturbed sleep and was unable to lie on the left side.
Ms Ireland also reported back symptoms to Dr Holman who recorded:
“She has experienced fairly constant back pain which is aggravated by bending and lifting. There is no radiation of her low back pain to buttocks or lower limb” (page three).
Dr Holman noted Ms Ireland was taking anti-depressant medication and had done so since her husband died. She also took two Panamax a night, but was not taking any other medication.
Dr Holman recorded that prior to the fall she had not suffered from headaches, left shoulder pain or back pain, or any problems with her knees. On examination of the lumbar spine Dr Holman noted there was tenderness of the L5/S1 with no muscle spasm or guarding, but movement was restricted with reduced forward flexion, extension and rotation. He concluded that he could find no diagnosis or cause for her headaches. He believed that the reduced range of movement of the left shoulder was consistent with adhesive capsulitis and the low back pain consistent with chronic musculo-ligamentous strain. Given the history that she was asymptomatic prior to the fall, he believed that her injuries, as described, were attributable to the fall.
Dr Holman also concluded Ms Ireland was fit for clerical duties on a fulltime basis, but was unfit for work as a kitchen hand or for work involving the use of her left arm above shoulder height. He was of the opinion that Ms Ireland had a 7% WPI as a result of the left shoulder symptom and due to the lack of significant clinical findings a 0% WPI as a result of the lumbosacral spine symptoms.
Did Ms Ireland sustain an injury to her back on 4 November 2004?
Appellant’s Submissions
On appeal the Appellant relies on written submissions dated 4 July 2008 from the proceedings at first instance and submissions on appeal attached to the Application and additional submissions filed on 2 October 2008.
The Department’s submissions before the Arbitrator were:
(a) The Worker has not discharged the onus of proof, by proving she sustained an injury to her lumbar spine.
(b) On the day of the alleged injury, the Worker attended on Dr Epps at the Cowra medical centre. No evidence was served from Dr Epps confirming that the Worker sustained a back injury or reported such injury to the doctor on 4 November 2004 or at any other time thereafter.
(c) The notification of Incident/Injury form signed by Mr Woodridge a representative of the Department, refers to “grazing to knee, hands, head plus MRI taken. No other injury is noted”.
(d) Dr Baker wrote to Dr Kwa 7½ months after the incident and after the Department had contested the injury. She referred the Worker for treatment of a trigger thumb and wrist problem but made reference to complaints in her hands, thumb, right wrists, head, neck, leg, hip and headaches. She did not however, make any reference to the Worker’s back.
(e) Dr Kwa, in his reports dated 24 June 2005, 29 July 2005 and 9 August 2005 made no mention of back complaint or injury.
(f) An x ray and ultrasound was performed on the left shoulder on 17 August 2005. There is no evidence of any radiological investigation of the back.
(g) The first reference to a back injury was in Dr Wallace’s report dated 9 October 2007, following his examination of the Worker on 7 September 2007. This was nearly three years after the alleged injury.
(h) In October 2007 Dr Wallace recorded intermittent pain and stiffness in the back, and diagnosed a soft tissue injury.
(i) Dr Holman who examined the Worker at the request of the Department on 13 March 2008, recorded the Worker’s history that since the fall she had experienced fairly constant low back pain aggravated by bending and lifting.
(j) The history provided to both Drs Wallace and Holman was “demonstrably flawed” ([13] submissions dated 4 July 2008).
(k) On the evidence available the Worker cannot discharge the onus of proof.
On appeal, the Department submits that:
(a) The Arbitrator erred in law in finding that the worker suffered injury to her lumbar spine, as he conceded that there was no contemporaneous evidence that the injury occurred and that the worker did not report the injury or claim compensation for the back.
(b) The Arbitrator based his decision on the Worker’s statement dated 2 May 2008, prepared approximately 3.75 years after the date of the incident.
(c) The Arbitrator justified his determination based on the history that the Worker gave to the doctors qualified by both parties.
(d) The Arbitrator misdirected himself by determining the issue of whether the Worker had sustained a back injury as an issue of credit. In doing so he ignored the onus of proof that the Worker bore to prove:
“that more probably than not such injury occurred in the matter [sic-manner] that she alleges for the first time nearly 3 years later in the context of a medico-legal examination.” (Submissions [12])
(e) It is an error of law to state that unless the Employer “positively proves the requisite standard that the Applicant is not a credible witness its defence in relation to a disputed injury must fail” (Submissions [13]).
(f) The Appellant relies on the authority of Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305.
(g) The Worker consulted her doctors in respect of treatment for her injuries but never mentioned the alleged back injury throughout her consultations with her doctors.
(h) The Worker never placed before the Commission the contemporaneous notes from Drs Epps or Baker, which may have assisted in proving injury to the lumbar spine. The Employer is therefore entitled to infer that had it been before the Commission it would not have assisted the Worker’s case, Jones vDunkel [1959] HCA 8; (1959) 101 CLR 298.
(i) The determination of the issue of injury must be based on objective facts and the Arbitrator rightly conceded that there was no objective evidence that the Worker suffered an injury to her lumbar spine on 4 November 2004.
Ms Ireland also relies on written submissions before the Arbitrator and additional submissions on appeal.
Ms Ireland’s submissions before the Arbitrator were undercover of letter dated 8 July 2008 and were as follows:
(a) Both Drs Wallace and Holman diagnosed injury to the back.
(b) All medical evidence accepted the Worker as a witness of truth.
(c) No evidence raised any direct issue on credit.
(d) The Worker’s statement dated 2 May 2008 gave evidence of injury to her lumbar spine.
(e) There is no evidence upon which the Department can challenge the evidence of Ms Ireland and the qualified doctors that she sustained a back injury.
On appeal Ms Ireland submits:
(a) The Arbitrator did not err in law but made a finding of fact that the Worker suffered an injury to her lumbar spine and such a finding was open to him on the evidence.
(b) There was no factual, legal or discretionary error by the Arbitrator and therefore the decision is not appealable (see Swayne v Waverley Municipal Council (2005) 220 CLR 517).
(c) There was no evidence before the Arbitrator critical of the Worker on the question of credit and the Worker was not cross-examined.
DISCUSSION AND FINDINGS
There is no doubt that Ms Ireland suffered injuries in the course of her employment on 4 November 2004, nor is there any issue that she sustained injuries to her left upper extremity and is entitled to lump sum compensation pursuant to section 66 of the 1987 Act, subject to quantification under Part 7 Chapter 7 of the 1998 Act.
The real issue in these proceedings is whether Ms Ireland injured her back in addition to injuring other parts of her body whilst on a journey to work, when she called into a post office to collect mail, tripped on a raised section of footpath, and fell onto both hands and knees.
On the day of the accident, Ms Ireland consulted Dr Jacqueline Epps at the Cowra Medical Centre. No report from Dr Epps has been produced in evidence, or the clinical notes of the Cowra Medical Practice.
The notification of injury form submitted by the Employer indicates that the injuries notified were “grazing to knee, hands, head, plus MRI taken”. There was no reference to an injury to the back.
Dr Baker’s referral to Dr Kwa on 16 June 2005 referred in some detail to the history of injury arising from the fall in November 2004. Dr Baker noted complaints with respect to the hands, thumb, right wrist, head, neck, leg, hip and headaches. There was no mention of an injury to the back.
There is no mention in any of the three reports from Dr Kwa of any complaints of back pain.
Whilst Ms Ireland has been referred for x-rays of her left shoulder and an ultrasound of the left shoulder, there is no evidence of any radiological investigations in relation to the back.
The first mention of any alleged back injury arises from the report of Dr Raymond Wallace, from his consultation on 9 September 2007. He noted Ms Ireland reported that she suffered abrasions of the forehead and left palm, pain in her left shoulder, both hands and the lumbar spine in the fall on 4 November 2004. Dr Wallace recorded her complaints as follows:
“At her lumbar spine she notes intermittent aching pain in the region of the L5 spinous process with no radiation to her lower limbs. The pain is only present early in the morning or with activities such as vacuuming and has no relieving factors.”
Dr Holman examined Ms Ireland in March 2008. She reported experiencing “fairly constant low back pain, which is aggravated by bending and lifting”.
The language used in Ms Ireland’s statement (see [47] and [49] above) is clearly not expressed in the terms one would expect of a worker of her education and background. References to a back injury described as “Lumbar Spine” and references to the “volar aspect” of the left wrist and the “volar aspect” of the right wrist are generally the language of medical practitioners. The description of injuries and ongoing complaints in Ms Ireland’s statement are almost identical to the way in which they are recorded in Dr Wallace’s report. Indeed, the reference to the description of her lumbar pain as “intermittent aching pain” is identical to that recorded in Dr Wallace’s report.
No family members, friends or work colleagues provided statements or gave evidence to corroborate complaints of back pain in the unexplained interval between November 2004 and October 2007.
The Arbitrator was conscious of the fact there was no contemporaneous evidence of injury to the lower back arising from the fall, and he said as much in his Reasons. That should have put the Arbitrator on notice to examine whether the principles relevant to the discharge of the onus of proof had been satisfied.
The principles relevant to the discharge of the onus of proof were discussed in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (16 October 2008) (‘Nguyen’) where McDougall J (McColl and Bell JJA agreeing) said at [44]-[48]:
“44. A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen (1940) 63 CLR 691 at 712.
45. Dixon CJ put the matter in different words, although to similar effect, in Jones v Dunkel (1959) 101 CLR 298 at 305 where his Honour said that “[t]he facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied”. Although his Honour dissented in the outcome of that case, the words that I have quoted were cited with approval by the majority (Stephen, Mason, Aickin and Wilson JJ) in West v Government Insurance Office of NSW (1981) 148 CLR 62 at 66. See also Stephen J in Girlock (Sales) Pty Limited v Hurrell (1982) 149 CLR 155 at 161 – 162, and Mason J (with whom Brennan J agreed) in the same case at 168.
46. It is clear, in particular from West and Girlock, that the requirement for actual satisfaction as to the occurrence or existence of a fact is one of general application, and not limited to cases where the fact in question, if found, might reflect adversely on the character of a party or witness.
47. In Malec vJC Hutton Pty Limited (1990) 169 CLR 638 Deane, Gaudron and McHugh JJ said at 642-643:
‘A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.’
48. On analysis, I think, what their Honours said is not inconsistent with the requirement that the tribunal of fact be actually persuaded of the occurrence or existence of the fact before it can be found. On their Honours’ approach, what is required is a determination of the respective probabilities of the event’s having occurred or not occurred. There is nothing in that analysis to suggest that the determination in favour of probability of occurrence should not require some sense of actual persuasion.”
Ms Ireland bore the onus of proof to establish that she did in fact suffer an injury to her lower back in the fall on 4 November 2004. The Arbitrator being conscience of the lack of any evidence of a back injury until Dr Wallace recorded the history of back symptoms in October 2007, almost three years after the accident, decided the issue based on the credit of Ms Ireland. He said:
“As has been identified by the Applicant’s solicitor’s submissions, there is no issue in terms of the integrity of the Applicant, her candidness, forthrightness or general honesty and as such credit is not an issue. Accordingly, I am satisfied that despite the fact there was no contemporaneous notes with any of the Applicant’s treating doctors, and the incident of 4 November 2004 that the Applicant did in fact sustain some pain to the region of the lumbar spine and to this day continues to have intermittent pain.”
In so doing, the Arbitrator wrongly directed himself that the matter could be decided based on the credit of Ms Ireland alone. The task before the Arbitrator was to weigh the evidence of Ms Ireland together with other objective evidence, or the absence of it. The Arbitrator erred in failing to give due weight to Ms Ireland’s failure to make any report of injury to her back on the day of the accident. The absence of any documentary evidence from Dr Epps or Dr Baker to support any complaints of back pain, either contemporaneous to the accident or at least at intervals during the period between the accident and when it was first reported to Dr Wallace, is a significant omission in Ms Ireland’s case.
In State Rail Authority v Earth Line Constructions Pty Limited (in liquidation) [1999] HCA 3; (1999) 160 ALR 588 the High Court warned of the dangers of decision makers relying on findings of credit rather than evidence of facts necessary to determine a lawful entitlement in the instant case.
The Arbitrator failed to give due weight to the referral letter from Dr Baker in June 2005. It is clear that Dr Baker took a comprehensive history from Ms Ireland in relation to her complaints at that time. Notwithstanding the recording of a variety of complaints, there is again no mention of any injury to the back.
Ms Ireland’s own statement, which is the only direct evidence of any injury to the back, is less than compelling. The descriptions of her injuries and ongoing symptoms are derived from extracts from the medical reports and are clearly not in her own words. Even if they were in her own words they failed to give any detail as to the onset of the pain, the nature of the pain, the duration of the pain, relieving factors or aggravating factors, or any explanation as to why she failed to mention her back pain to any doctors for several years.
Ms Ireland’s account of her back pain to Drs Wallace and Holman are inconsistent. She complained to Dr Wallace that her pain was “intermittent”. Dr Holman however, recorded complaints of “fairly constant” low back pain aggravated by certain activities.
Both Drs Wallace and Holman concluded that a causal relationship existed between Ms Ireland’s back symptoms and the work related fall, based upon the complaints by Ms Ireland of either “fairly constant”, or at least “intermittent”, low back pain since her injury in 2004.
It is well-established law that an expert’s medical opinion is of limited probative value in the overall assessment of the issues if it is based upon an inaccurate history (see Makita (Aust) Pty Limited v Sprowles (2001) 52 NSWLR 705).
The objective evidence before the Arbitrator did not support the histories of back symptoms referrable to the fall on 4 November 2004, as recorded by Drs Wallace and Holman. The more compelling evidence is, and I find that, Ms Ireland did not report any back injury or symptoms prior to attending on Dr Wallace in late 2007 and Dr Holman in early 2008.
Given that the histories relied upon by both medico-legal experts of back pain since the fall in 2004, were unsupported by any evidence and inconsistent with the histories recorded by Ms Ireland’s treating doctors since the date of the fall, I conclude that both doctors’ opinions in respect of supporting a causal link between Ms Ireland’s reported back symptoms and the work related fall on 4 November 2004, are therefore of limited probative value.
In summary, the following factors lead me to the conclusion that, on review, Ms Ireland has failed to establish an “actual persuasion”, as discussed in Nguyen, that I could be reasonably satisfied, on the balance of probabilities, that she suffered an injury to her back when she fell whilst walking to work on 4 November 2004:
(a)Ms Ireland’s failure to report an injury to the back to her employer on or soon after the accident.
(b)Her failure to report back symptoms to either of her general practitioners, notwithstanding ongoing treatment.
(c)The absence of any reference to back pain in the comprehensive history taken by Dr Baker when referring Ms Ireland to Dr Kwa.
(d)Ms Ireland’s failure to report back symptoms to Dr Kwa.
(e)The lack of any corroborative evidence of back complaints over several years between the fall on 4 November 2004 and the examinations by Dr Wallace in October 2007 and Dr Holman in March 2008.
(f)The inconsistent histories given to Drs Wallace and Holman.
(g)The unconvincing nature of Ms Ireland’s statement, which was not made until 2 May 2008, and which draws heavily from the report of Dr Wallace in dealing with the relevant evidence concerning the alleged back injury and ongoing symptoms.
(h)The absence of any explanation by Ms Ireland in her statement of the lengthy delay in reporting back symptoms.
I am not satisfied on review, that Ms Ireland has discharged the onus of proof that she suffered an injury to her lower back in the fall on 4 November 2004. The appeal is allowed and the Arbitrator’s findings and orders in relation to the claim for injury to the back are revoked.
For the reasons given, I find that Ms Ireland did not suffer an injury to her back on 4 November 2004 and as such it is appropriate to make an award in favour of the Appellant in relation to the back injury.
DECISION
Paragraphs 1 and 2 of the Arbitrator’s Determination dated 23 July 2008 are revoked and the following orders made:
1. (a) Award for the Respondent in respect of injury to the back.
(b) The matter is remitted to the Registrar for referral to an AMS for assessment of the Whole Person Impairment in respect of the left upper extremity arising from injuries sustained on 4 November 2004.
2.The Respondent is to pay the Applicant’s reasonable and necessary medical expenses pursuant to section 60 of the Workers Compensation Act 1987, except in respect of injuries to the back.
Paragraph 3 of the Determination is confirmed.
COSTS
Each party is to pay her or its own costs of the Appeal.
His Honour Judge Keating
President
11 November 2008
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON. JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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