Doncevski v CAL Marketing Pty Ltd
[2009] NSWWCCPD 105
•25 August 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Doncevski v CAL Marketing Pty Ltd [2009] NSWWCCPD 105 | ||||
| APPELLANT: | George Doncevski | ||||
| RESPONDENT: | CAL Marketing Pty Ltd | ||||
| INSURER: | GIO General Ltd | ||||
| FILE NUMBER: | A1-1655/09 | ||||
| ARBITRATOR: | Mr G Adelstein | ||||
| DATE OF ARBITRATOR’S DECISION: | 6 May 2009 | ||||
| DATE OF APPEAL DECISION: | 25 August 2009 | ||||
| SUBJECT MATTER OF DECISION: | Weight of evidence; failure to discharge onus of proof | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Somerville & Co | |||
| Respondent: | Hicksons | ||||
| ORDERS MADE ON APPEAL: | For the reasons given in this decision, the Arbitrator’s determination of 6 May 2009 is confirmed. | ||||
| Each party is to pay his or its own costs of the appeal. | |||||
BACKGROUND
The worker, Mr Doncevski, started work with the respondent, CAL Marketing Pty Ltd, as a delivery driver in or about March 2001. As well as driving a one tonne Toyota van, his duties required him to lift and carry boxes. On 10 January 2002, he completed a claim form in which he stated that, as a result of loading and unloading his vehicle in the course of his employment, he sustained a back strain.
Though it is unclear from the evidence available to me, I assume that liability for this claim was accepted. By an Application to Resolve a Dispute filed in the Commission on 24 June 2003, Mr Doncevski claimed lump sum compensation in respect of impairment to his back and loss of efficient use of each of his legs at or above the knee. His claim was referred to an Approved Medical Specialist (‘AMS’) for assessment. In a Medical Assessment Certificate (‘MAC’) prepared by Dr Pillemer on 18 December 2003, Mr Doncevski was assessed to have a 7% whole person impairment. This assessment was amended in a supplementary MAC issued by Dr Pillemer on 9 May 2005, when Mr Doncevksi was assessed to have a 10% impairment of his back, a 5% loss of efficient use of his right leg at or above the knee, and a 5% loss of efficient use of his left leg at or above the knee as a result of the nature and conditions of his employment up to 31 December 2001.
After a contested arbitration hearing, the Commission issued a Certificate of Determination on 20 July 2005 in which Mr Doncevski was awarded compensation in the terms of the supplementary MAC plus compensation for pain and suffering.
By letter dated 19 June 2007, Mr Doncevski’s previous solicitors claimed additional lump sum compensation in respect of his back and legs and, apparently, made a new claim for lump sum compensation as a result of an alleged injury to the neck (with consequential losses in his arms as a result of symptoms from his neck into his shoulders) and knees. The basis of these claims was not properly particularised.
In a section 74 notice dated 5 December 2007 the respondent’s workers compensation insurer, GIO General Ltd (‘GIO’), denied liability on the grounds that there had been no deterioration in the condition of Mr Doncevski’s back or legs since the previous award, and he had received no injury to his knees, neck or arms related to his employment.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 4 March 2009, Mr Doncevski claimed lump sum compensation under the Table of Disabilities in respect of a 20% impairment of his neck, 10% loss of efficient use of his right arm at or above the elbow, 10% loss of efficient use of his left arm at or above the elbow, 30% impairment of his back, 25% loss of efficient use of his right leg at or above the knee, and 15% loss of efficient use of his left leg at or above the knee.
The Application is so poorly drafted that it is impossible to identify the nature of the allegations being made. It alleges a date of injury of 31 December 2001 and gives the following “injury description”: “lumbar strain with discogenic lesions, cervical strain with nerve root irritation, bilateral chondromalacia”. Under “describe how injury occurred” the words “nature and conditions” appear. The words “nature and conditions” are completely meaningless and should not have been used without some proper explanation of how and when the alleged injuries were received (see Mirkovic v Davids Holdings Pty Ltd (1995) NSWCCR 656). Nevertheless, given the way the case was conducted at arbitration and given that the Commission is not bound by strict pleadings, nothing turns on the unsatisfactory pleadings. That will not always be the case, however, and parties should be aware that claims should be properly particularised, either in the Application to Resolve a Dispute or in correspondence.
In a Reply filed on 25 March 2009, the respondent disputed liability on the grounds set out in the letter from GIO dated 5 December 2007 (see [5] above).
Arbitrator Adelstein heard the matter on 28 April 2009. No oral evidence was heard, but the parties’ legal representatives made lengthy oral submissions. In a reserved decision delivered on 6 May 2009, the Arbitrator found against Mr Doncevski in respect of the alleged injury to his knees and neck on the grounds that he was not satisfied that the worker had discharged the onus of proof. He referred the claim for additional lump sum compensation in respect of the back injury to the Registrar for referral to the original AMS for further assessment.
By an appeal filed on 2 June 2009, Mr Doncevski seeks leave to appeal the Arbitrator’s determination.
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 Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the monetary thresholds in section 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 6 May 2009, records the Arbitrator’s orders as follows:
“1. I refer the matter back to the Workers Compensation Commission to enable the matter to be returned to Dr Pillemer, the previous AMS, to enable him to consider what, if any, deterioration there has been in respect of the low back, the left and right legs at or above the knee, since the previous orders of the Commission. A copy of my Statement of Reasons should be made available to the AMS.
2. Dependant on the AMS’s findings, the matter may need to be returned to an Arbitrator for consideration of Section 67.
3. Notwithstanding that the Applicant has been primarily unsuccessful in relation to his case, I am satisfied that the proceedings were properly brought and I therefore order that the Respondent pay the Applicant’s costs, to be assessed if not agreed. I consider that this matter is complex and I determine that there should be an uplift of 25% available to both the Applicant and Respondent.”
THE EVIDENCE
Lay evidence
Mr Doncevski’s evidence is set out in his statement of 12 February 2009. He started work with the respondent in about March 2001 as a delivery driver. His duties required him to load and drive a Toyota van. He lifted approximately 380 boxes daily. Each box weighed approximately three to six kilograms and he lifted two to three at a time from ground level to waist height. He then had to strain his neck to look around the boxes that obstructed his vision.
After “picking” an order he would take it to the loading area and load his van. In the course of loading his van he would be bent over because of the confined space in the van. Mr Doncevski also had to pack and to lift “bulk orders”. This required him to manually pick orders and place them on to a pallet. He would then “shrink wrap” the pallets. This required him to bend using his knees and lower back. He would then pull the pallet to the loading dock using a pallet jack.
After loading his van he then made his deliveries. He was constantly under pressure to work faster and harder in the warehouse and felt exhausted every day. He gradually noticed pain in his lower back and legs, as well as his shoulders. The pain increased to the point where in December 2001 he could not continue and he ceased work on 2 January 2002. He saw his general practitioner at Bankstown Medical Centre, Dr Bateman, and was referred for physiotherapy and massage treatment. Approximately six months after ceasing work his shoulder pain spread to his neck.
In his claim form dated 10 January 2002, Mr Doncevski described what happened in the following terms “loading and unloading commercial vehicle everyday constantly”. He described his injury as a “back sprain”.
Medical evidence
Mr Doncevski relies on over 30 reports from Dr Grahame Mahony, a report from Dr Adler dated 6 January 2009, an MRI scan dated 19 April 2002, a bone scan dated 20 June 2002 and an incomplete nerve study performed on 11 July 2002. Although I have read all of Dr Mahony’s reports, I do not intend to summarise or refer to each one in my decision but will focus mainly on those reports that deal with the present claim.
The first medico-legal report from Dr Mahony is dated 19 February 2003. It recounts that he saw Mr Doncevski on referral from Dr Gerges, general practitioner at Rockdale, on 17 June 2002. He took a history that in about May 2001 Mr Doncevski noticed “a tiredness of his lower back” while working as a driver and carrying out warehouse duties. His work involved loading and unloading about 1000 boxes a day, weighing between three and seven kilograms. He would carry about three boxes at any time. He noticed added pain in his knees. He stopped work on 2 January 2002 and saw Dr Bateman who referred him to Dr Loefler. Physiotherapy provided temporary relief.
Dr Mahony recorded that Mr Doncevski complained of pain in his low and mid back. He also recorded that “he used to have pain in the knees which had not settled”. Mr Doncevski did not complain of any neck or upper limb symptoms.
Dr Mahony examined Mr Doncevski’s back and lower limbs. Apart from reduced straight leg raising and a depressed right ankle reflex, no abnormality of significance was detected in the examination of the remainder of the lower limbs.
Dr Mahony reviewed Mr Doncevski on 19 August 2002, but he has not recorded his findings on examination on that date.
At review on 18 November 2002, Dr Mahony understood that Mr Doncevski complained of mid and low back pain.
At review on 13 January 2003, Dr Mahony understood that Mr Doncevski complained of mid and low back pain as well as stiffness of his legs on occasions. He also complained of specific pain in his knees. On examination of the knees, there was a complaint of tenderness on palpating the medial articular margin of the right patella. Both knee movements were within normal limits though crepitus was noted, the right more so than the left.
Dr Mahony diagnosed Mr Doncevski to have a thoracic and low back strain in association with the degenerate changes and discogenic lesions at L3/4 and L4/5 levels with evidence of right S1 nerve root irritation. He had added symptoms referable to bilateral chondromalacia of the patellae in association with degenerate changes. Dr Mahony considered that the nature of Mr Doncevski’s work had aggravated his knee conditions.
Dr Mahony reported to Dr Gerges on 3 April 2003 that he reviewed Mr Doncevski on 17 March 2003. Mr Doncevski complained of mid and low back pain. He said that Mr Doncevski used to have pain in his knees, which had settled.
Dr Mahony examined Mr Doncevski on 14 May 2003 when he noted a complaint of pain in the mid and lower back and in both calves. Dr Mahony recommended an ultrasound investigation to determine the presence of any deep venous thrombosis, but Mr Doncevski declined to have that investigation. Dr Mahony again recommended that investigation in July 2003, but it is not clear if it was undertaken.
At review on 17 December 2003, Mr Doncevski complained of pain in his mid and low back, pins and needles in his right leg and occasionally the left leg, pain in both knees, and slight pain in the neck and shoulders.
At review on 16 June 2004, Mr Doncevski complained to Dr Mahony of pain in his mid and low back, as well as a feeling of pins and needles in the right leg and occasionally of the left leg. He also complained of pain in both knees and of “slight pain in the neck and shoulders”. Dr Mahony stated in his report of 23 June 2004 that, in addition to his mid and low back symptoms, Mr Doncevski had symptoms referable to a cervical strain with nerve root irritation radiating to the shoulders and symptoms referable to bilateral chondromalacia of the patellae in association with degenerate changes and right patella tendonitis.
Mr Doncevski complained to Dr Mahony about pain in his knees and a slight pain in his neck and shoulders at several reviews with that doctor through 2004 and 2005.
Dr Mahony prepared a second medico-legal report on 23 February 2006. Referring to the review on 17 March 2003, the doctor noted that Mr Doncevski used to have pain in the knees, “which had now settled”. Dr Mahony then set out a summary of his findings on examination at each of the several reviews between December 2003 and December 2005. Under “Opinion”, Dr Mahony stated that Mr Doncevski appeared to have added symptoms “referable to a cervical strain with nerve root irritation radiating to the shoulders, although rotator cuff lesions could not be excluded” and symptoms “referable to bilateral chondromalacia of the patellae”. Dr Mahony felt it was “consistent that the nature of his work has produced such lesions aggravating degenerate changes in his neck and back” and considered the “cervical symptoms radiating to the upper limbs to be associated with altered spinal posture and being indirectly related to his back condition”.
Mr Doncevski again complained to Dr Mahony of pain in his back and knees at review on 7 March 2006.
An MRI scan of the cervical spine dated 22 March 2006 failed to reveal any abnormality. After examining the MRI scan, Dr Mahony stated in a report of 19 May 2006 that he did not alter the opinion expressed in his report of 23 February 2006.
Dr Mahony reviewed Mr Doncevski on 7 August 2006. In his report to Dr Gerges of 11 August 2006, he noted, in addition to his previous opinions, that Mr Doncevski appeared to have pressure on the infrapatella branch of the long saphenous nerve.
In a letter addressed to GIO on 16 January 2007, Dr Mahony repeated the diagnoses set out in his earlier reports and added that the treatment to date consisted of massage, physiotherapy and medication.
Dr Mahony continued to review Mr Doncevski through 2007 and 2008.
Dr Mahony’s last report in evidence is dated 19 November 2008 and is addressed to the worker’s current solicitors. It states:
“I have received your letter dated 8 September 2008.
I was informed by Mr Doncevski that he worked in a warehouse as well as a driver and he informed me that whilst working in the warehouse, his work involved constant squatting.
I considered that the nature of his work has produced cervical, shoulder and back symptoms and the constant squatting producing added symptoms referable to bilateral chondromalacia of the patellae in association with degenerate changes and a right patella tendonitis which involved pressure on the infrapatella branch of the long saphenous nerve.”
At the request of his current solicitors, Dr Adler, specialist in rehabilitation medicine, examined Mr Doncevski on 4 December 2008. In his report of 6 January 2009, Dr Adler took a history that Mr Doncevski’s duties included loading, shrink wrapping pallets, driving as far as Newcastle and the Central Coast, and frequently lifting up to 10 kilogram loads. During the busy Christmas rush in November/December 2001, Mr Doncevski developed a “further relapse of lower back discomfort and on 2 January 2002 ceased working”. He was referred to Dr Mahony who diagnosed a cervical strain with nerve root irritation causing pain to the shoulders, shoulder rotator cuff lesions, thoracic strain, and lumbar strain injury.
Mr Doncevski complained of pain in his lower back that radiated to his shoulders and over the back of his head, and that his knees at times went numb. He said he was only able to walk 100 metres because of back pain. Under “Past History”, Dr Adler recorded that Mr Doncevski described a gradual onset of lower back discomfort in May 2001 “having one day off work and also pain in both knees”.
On examination, Dr Adler noted that there was “much moaning and groaning, grimacing, and [Mr Doncevski] reported to be so disabled that he could not remove his shoes”. Examination of the lumbar spine demonstrated no active movement with an absence of muscle guarding causing spasm. Straight leg raising was profoundly reduced to only 10° and almost absent. Mr Doncevski walked in an extremely slow almost robotic way during examination, but at the conclusion of the interview walked out of the examination room in a “normal fluent walking speed”.
Examination of the shoulders demonstrated a severe symmetrical restriction of only 90° of elevation and only 10° extension. There was no local tenderness or impingement sign. The severe loss of range of movement was contrasted to the well-preserved fluid shoulder movement on informal examination. Dr Adler noted Mr Doncevski to be well built with “excellent muscle bulk”.
Examination of the knees revealed excellent quadriceps bulk, no joint effusion, no crepitus, negative patellofemoral compression, no ligament laxity and no meniscal abnormality.
Under “Opinion”, Dr Adler stated that non-organic features dominated the examination findings. The description of shoulder symptoms was vague. The examination of the shoulders was inconsistent with any anatomical objective impairment, and the discrepancy between formal and informal examination was a concern. Dr Adler accepted that there was a mild cervical strain injury, which arose due to a period of intense lifting activity in approximately November/December 2001. He also accepted that there was referred pain from the neck to the shoulders. Mr Doncevski’s complaints regarding his knees, however, were vague and Dr Adler could not demonstrate any abnormality with the knees. He was unaware of any radiological abnormalities of the knees.
Mr Doncevski was examined by Dr Michael Morris on behalf of the respondent and his reports dated 18 August 2003 (x3), 16 October 2006, 30 July 2007, and 29 October 2007 (x3) are in evidence.
In his report of 18 August 2003, Dr Morris took a history that Mr Doncevski developed extreme pain in his back, indicating the thoraco-lumbar region with spreading up and down the spine from that area, in the last week before Christmas in 2001. X-rays dated 21 February 2002 revealed wedging of the T12 vertebrae and some spurring anteriorly at the T10/T11 vertebrae. An MRI scan of the lumbar spine dated 12 April 2002 revealed no abnormality that Dr Morris could see. The bone scan looked to Dr Morris to be unremarkable.
The back pain radiated to Mr Doncevski’s legs and his calves were stiff and uncomfortable. His right knee hurt. Mr Doncevski repeatedly described in detail the severity and constancy of his back pain, and repeatedly indicated the site of the pain to be around the upper lumbar and lower thoracic region. He stated that he was unable to lift either leg off the couch and would not allow the doctor to attempt to elevate either leg to passively test straight leg raising. Dr Morris was unable to examine Mr Doncevski’s knees, as he claimed to be unable to bend them while lying flat. Mr Doncevski was nonetheless able to sit on the edge of the examination couch with his legs normally flexed. Palpation of the knees through a range of about 90° did not suggest any evidence of arthritis. The kneecaps were normal with no effusion and no evidence of thickening of the joint capsule. The calves were of equal circumference and reflexes equal in his knees and ankles.
Under “Attributability”, Dr Morris said:
“Once again, taken at face value one would have to regard his work as being the basis of the present symptomatology, and it is clear that this is his view of it. The problem however is that no clear cut basis has yet been determined unless one is to accept muscular or ligamentous strain.
I don’t believe that such a diagnosis would fit the facts of the case, but at this stage apart from psychogenic symptomatology, it is hard to see any other likely cause.
The wedge deformity of the T12 vertebrae given that it is clearly of longstanding, would seem an unlikely explanation if his description of playing touch football and soccer up to the time of leaving work is accurate.
My view in regard to attributability [is] that it is difficult to see how his work could have caused a condition capable of accounting for the present high level of symptoms, given the absence of any convincing radiological or bone scan abnormalities.
It would seem unlikely that simply been [sic, being] required to work under pressure for a week before Christmas 2001, would account for his present claimed levels of incapacity.”
In a separate short report dated 18 August 2003 dealing with whether employment was a substantial contributing factor to Mr Doncevski’s alleged injury, Dr Morris said it was difficult to be clear what the alleged injury may be. He added, however, that he could accept that employment could have been a substantial contributing factor to a muscular or ligamentous strain, but apart from his claimed symptomatology, there was little support for such a diagnosis in terms of objective investigations or objective physical findings. He therefore concluded that employment could not, at this stage, be regarded as a substantial contributing factor to the alleged injury.
In a third report dated 18 August 2003, Dr Morris considered the question of the most appropriate date of injury and the assessment of the degree of permanent impairment of Mr Doncevski’s back. Dr Morris said that there seemed to be nothing wrong with Mr Doncevski’s knees or his legs. The doctor made no comment about the worker’s neck.
At the re-examination with Dr Morris on 16 October 2006, Mr Doncevski said that his back was his main problem and he also described stiffness in his neck and shoulder girdle. On examination, Mr Doncevski indicated that his back pain spread up and down the entire length of his spine from his neck to his sacrum. The range of movement of the neck was reasonably normal. He could only perform about 90° of anterior or lateral elevation of his shoulders, though he was observed to do better (between 130 and 160°) when he was removing and replacing his top. The apparent restriction of shoulder elevation was due to complaints of pain in the back region on attempted elevation, not due to any problem in the shoulder joints themselves. Mr Doncevski climbed onto the examination couch with apparent difficulty. Because of anticipated back pain, he refused to perform any degree of straight leg raising. Both his calves and thighs were well muscled. When Mr Doncevski sat on the edge of the examination couch, it was possible to demonstrate normal movement in his knees.
Under “Opinion”, Dr Morris stated that there appeared to be little objective evidence of any abnormality in Mr Doncevski’s neck. In any event, given that there had been no complaints about neck pain at the original examination, it was hard to see what the neck complaint had to do with his work. In Dr Morris’ opinion there was no diagnosable abnormality in regard to the neck, other than the symptoms complained of.
Dr Morris reviewed Mr Doncevski on 30 July 2007 when his presentation was much the same as on the previous occasion. Mr Doncevski complained of pain in the back of his neck, possibly extending over much of the length of his thoraco-lumbar spine. When Mr Doncevski was asked to indicate the site of his pain, he apparently indicated from the mid-lumbar region to the lower thoracic region.
On examination, Mr Doncevski demonstrated a full range of neck movement with no particular indication or complaint of pain. Dr Morris did not think that Mr Doncevski’s condition had deteriorated since his previous examination.
At his examination on 29 October 2007, Dr Morris felt that things were much the same. Mr Doncevski’s pain centred on the mid portion of his back, but he also got pain spreading up to his neck. When he got up in the morning and tried to walk, he had widespread pain down the length of his back and into his calves, and up into the neck and shoulders. He said his knees felt weak and that they creaked and cracked. He was able to fully elevate both arms above the shoulders, but said that it caused pain in the lower thoracic region. He had a full range of neck movement, but he indicated that rotation to the left produced pain. Dr Morris felt there was no convincing clinical evidence of any derangement in the neck and that the symptoms radiating to the neck and shoulders appeared to emanate from the thoracic region. He did not think there was any rotator cuff problem in the shoulders. Even if it were the case that Mr Doncevski had chondromalacia patella, Dr Morris could not see any link between such a condition and his work.
THE ARBITRATOR’S REASONS
In his Statement of Reasons (‘Reasons’) the Arbitrator summarised the parties’ submissions and found:
(a) Mr Doncevski did not complain about his knees and neck “until some considerable time” [after he stopped work] (Reasons at [21]);
(b) no records of complaints to the general practitioner were before him. The absence of material that would have assisted him is a matter that had to be weighed as part of the exercise as to whether Mr Doncevski satisfied him of the causal nexus (Reasons at [22]);
(c) in respect of an injury of this nature, he expected there to be a record of complaint earlier than five and a half months from the precipitating event. The absence of any contemporaneous complaints was telling (Reasons at [23]);
(d) he was not satisfied that Mr Doncevski had discharged the onus of proof that he carried in respect of either the knees or the neck injury (Reasons at [24]);
(e) looking at the whole of the material, in particular Dr Adler’s report, he was not satisfied that Mr Doncevski had discharged his onus (Reasons at [25]), and
(f) accordingly, he found that the neck and knee complaints were not causally connected to the nature and conditions claim the subject of the proceedings (Reasons at [25]).
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) failing to take into account or refer in the determination to medical findings and opinions provided in support of Mr Doncevski’s case;
(b) determining that Mr Doncevski’s neck and knee complaints were not causally connected to the nature and conditions of his employment, and
(c) finding that Mr Doncevski had not discharged the onus of proof.
SUBMISSIONS, DISCUSSION AND FINDINGS
The knee claim
It is submitted on behalf of Mr Doncevski that:
(a) Dr Morris first mentioned Mr Doncevski’s knee condition in his report of 29 October 2007. The report makes no mention of the doctor having examined Mr Doncevski’s knees and no history is recorded of how the worker allegedly injured his knees. Dr Morris does not go so far as to dispute Dr Mahony’s diagnosis and the report provides no basis for his opinion that the condition is not work-related;
(b) Dr Adler expressed no view as to whether he accepted or rejected that the worker suffered an injury to his knees in 2001;
(c) reliance is placed on Dr Mahony’s reports;
(d) the Arbitrator’s failure to accept or reject the medical evidence tendered amounts to an error of law;
(e) the Arbitrator failed to refer to either the view of Dr Mahony or Dr Adler and provided no reasons for rejecting those views, rejecting Mr Doncevski only on the basis of a lack of evidence of contemporaneous complaints;
(f) knee symptoms were first recorded by the treating specialist, Dr Mahony, only a few months post injury;
(g) there is a continuum of complaints of knee symptoms to Dr Mahony throughout his reports. The waxing and waning of these knee symptoms is consistent with the type of degenerative condition diagnosed by Dr Mahony and is not “an inconsistent history” as asserted by the respondent;
(h) by requiring that there be a contemporaneous report to a doctor of symptoms before a condition could be found to be work-related, the Arbitrator placed too high a burden of proof on Mr Doncevski. In the context of a severe back condition, it is not unusual that a worker will not immediately complain of other symptoms that may have manifested themselves at the same time;
(i) the absence of the general practitioner’s notes, or a report from the general practitioner, only gives rise to an inference that such information would not have assisted Mr Doncevski. In the context of support from Dr Mahony, the absence of an attack on Mr Doncevski’s credit, and the unfounded conclusions reached by Dr Morris, the Arbitrator required the worker to satisfy a greater standard of proof than that of the balance of probabilities, and
(j) the authority of the Department of Education and Training v Ireland [2008] NSWWCCPD 134 (‘Ireland’) can be distinguished from the present case. In that case the first recorded complaint was three years after the alleged injury and then only to a medico-legal doctor. The history of the onset of Ms Ireland’s complaints varied significantly and her credibility was called into question. In the present case the delay is much shorter, the complaint was to a treating specialist, and no criticism is made of Mr Doncevski’s credibility.
The unexplained absence of any recorded complaint of knee pain until the attendance on Dr Mahony on 17 June 2002 is significant and greatly undermines Mr Doncevski’s claim that he injured his knees at work with the respondent. The plausibility of his claim is further diminished when one considers the claim form of 10 January 2002, which only refers to a back sprain. I do not accept that Mr Doncevski’s back symptoms were so severe that they prevented him from referring to his knee symptoms at an earlier time, if they existed and if they had been caused by his work, as he now claims. There is no evidence to support this theory.
More importantly, though Mr Doncevski’s statement of 12 February 2009 refers to him bending and using his knees and low back in the course of his work, it makes no mention of him experiencing knee pain at work in 2001, but merely refers to him feeling pain in his back, legs and shoulders. In these circumstances, I do not accept the submission that Mr Doncevski’s knee symptoms in June 2002 resulted from his work with the respondent in 2001.
The appellant’s summary of Dr Morris’ evidence about the knee condition is not correct. In his report of 18 August 2003, Dr Morris took a history of Mr Doncevski complaining of right knee pain. The doctor noted that palpation of the knees through a range of about 90° did not suggest any evidence of arthritis and the kneecaps were normal with no effusion or thickening of the joint capsule. He added in his third report of 18 August 2003 that there seemed to be nothing wrong with Mr Doncevski’s knees. This opinion is consistent with his finding in his report of 16 October 2006 that it was possible to demonstrate normal movement of Mr Doncevski’s knees.
I do not accept Dr Mahony’s diagnosis, which appears to be primarily based on Mr Doncevski’s subjective complaint of tenderness and the alleged presence of crepitus. In the absence of any objective radiological evidence of pathology in the knees, in light of the contrary findings on examination by Dr Adler (considered in detail at [67] below) and Dr Morris, and in light of Mr Doncevski’s inconsistent presentation to Dr Adler, I do not find Dr Mahony’s opinion persuasive.
Even if Dr Mahony’s diagnosis is accepted, as I do not accept that Mr Doncevski experienced knee symptoms in the course of his employment with the respondent and as there is no explanation for the delay in the onset of knee pain, I do not accept that the conditions Dr Mahony diagnosed have resulted, either by way of aggravation or otherwise, from Mr Doncevski’s employment. If, contrary to my finding, Mr Doncevski did suffer an aggravation injury, in light of Dr Mahony’s note on 3 April 2003 that the symptoms had settled, I do not accept the effect of that aggravation is continuing. I do not accept that this report is evidence of Mr Doncevski’s condition waxing and waning. It is consistent with any work aggravation (if it existed) having ceased.
Dr Adler’s evidence does not advance Mr Doncevski’s claim. He recorded that Mr Doncevski’s knees went numb “at times”. He also recorded Mr Doncevski’s presentation at examination to be inconsistent with his range of movements when leaving the examination room. This raises a serious issue as to whether Mr Doncevski’s complaints can be accepted as genuine and reliable in the absence of independent corroboration. I am comfortably satisfied that they cannot. On examination of Mr Doncevski’s knees, Dr Adler observed him to have excellent quadriceps bulk, no joint effusion, no crepitus, negative patellofemoral compression, no ligament laxity and no meniscal abnormality. In other words, he found no abnormality and felt that Mr Doncevski’s complaints were vague. Dr Adler’s findings, which I accept, are consistent with Mr Doncevski having sustained no injury to his knees arising out of or in the course of his employment with the respondent.
In light of the findings on examination by Drs Adler and Morris, the long and unexplained delay before the first recorded complaint of knee pain, and the lack of any radiological investigations indicating the presence of any relevant pathology, I am comfortably satisfied that Mr Doncevski did not sustain an injury to his knees while working with the respondent, either under section 4(a) or 4(b)(ii) of the 1987 Act.
The neck claim
It is submitted on behalf of Mr Doncevski that:
(a) the only evidence adverse to Mr Doncevski’s claim in respect to the neck is from Dr Morris in his report of 16 October 2006;
(b) Drs Mahony and Adler both support the assertion that Mr Doncevski’s neck complaints are diagnosable, assessable and related to his employment;
(c) the Arbitrator’s failure to accept or reject the medical evidence is an error of law;
(d) Dr Mahony’s evidence is that the neck condition is a consequence of the back condition. The late onset of the neck symptoms is therefore of no consequence;
(e) the evidence in support of Mr Doncevski’s neck condition being related to his employment far outweighs the evidence adduced by the respondent, and
(f) the Arbitrator failed to refer to the evidence from either Dr Mahony or Dr Adler and provided no reasons for rejecting their evidence.
The basis on which the neck claim is pressed is not properly identified. The Application suggests that Mr Doncevski suffered a cervical strain with nerve root irritation as a result of the nature and conditions of his employment. That is consistent with the submission made by Mr Doncevski’s counsel, Ms Wood, at the arbitration where she said (at T62.47-63.5):
“Ms WOOD: Given this man is not performing any heavy work after December 2001 and given that he was complaining of neck and shoulder pain while at work and that the medical evidence is that the shoulder pain comes from your neck, even though he describes it the other way around, in my submission, you would be satisfied that the applicant has suffered a neck injury, that it may ‑ the consequence of that neck injury has not manifested itself in actual neck pain until some months later, however he did have shoulder pain while at work, which the doctors all attribute to a problem with the neck, and, in my submission, the balance of the medical evidence suggests and is supportive of the applicant having suffered a neck injury at work as a result of the nature of the work he was doing, and if you measure the applicant’s case against the respondent’s case ‑ we’ve got two, they have got one ‑ then I would submit –” (emphasis added)
On appeal, however, Ms Wood seems to argue that the late onset of Mr Doncevski’s neck complaints is not a bar to her client succeeding with the claim because Dr Mahony states that the neck condition is associated with altered spinal posture and is indirectly related to the back condition. Given this change in position, I will deal with both arguments.
Whilst Mr Doncevski’s statement refers to shoulder pain, his claim form refers only to a back sprain and there is no medical evidence referring to shoulder or neck symptoms until 17 December 2003 when Dr Mahony recorded a complaint of slight pain in the neck and shoulders. Dr Mahony’s report of 19 February 2003 recorded that Mr Doncevski made no complaint of any neck or upper limb symptoms at his examination on 17 June 2002. Given this history, not disputed by Mr Doncevski, Dr Mahony’s assertion in his February 2006 report that it is consistent that the nature of Mr Doncevski’s work produced a cervical strain and aggravated degenerate changes is totally untenable and I do not accept it. Similarly, his opinion in his November 2008 report that the nature of Mr Doncevski’s work produced cervical and shoulder symptoms is equally flawed and is inconsistent with the history that those symptoms did not develop until December 2003.
Given Mr Doncevski’s evidence in his statement and his claim form, and Dr Mahony’s history noted in [72] above, Dr Adler’s conclusion that Mr Doncevski has a mild cervical strain that arose due to a period of intense lifting in approximately November-December 2001 is also unsound and cannot be accepted. It may be that Dr Adler based his conclusion on an incorrect assumption that Dr Mahony diagnosed a cervical strain at his first examination of Mr Doncevski. Not only did Dr Mahony not diagnose a cervical strain at his first examination of Mr Doncevski on 17 June 2002, he expressly noted that Mr Doncevski did not complain of any neck or shoulder symptoms on that occasion. Dr Mahony’s later opinion linking the neck symptoms with the work is, as I have stated, untenable.
The only possible basis on which the neck and shoulder claim can be supported is that it arises from the back condition. The support for this proposition is said to be in Dr Mahony’s report of 23 February 2006 where he said, in addition to concluding that the neck lesions were consistent with the nature of the work Mr Doncevski performed, that he considered “the cervical symptoms radiating to the upper limbs to be associated with altered spinal posture being indirectly related to his back condition”. This conclusion lacks probative value as it is completely unexplained and is no more than a bare conclusion (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; (2007) 4 DDCR 42). There is no evidence that Mr Doncevski’s back condition has resulted in an altered spinal posture. Even if that were the evidence, an expert purporting to link neck and shoulder symptoms to a back condition must provide an explanation for that link. Dr Mahony has not even attempted to do so and his conclusion is unpersuasive. In these circumstances, Mr Doncevski has failed to discharge the onus of proof in respect of his alleged injury to his neck and shoulders.
Further or in the alternative, based on Dr Morris’ evidence, which I accept, I do not believe that Mr Doncevski has suffered an injury to his neck, either as a result of his back condition or otherwise. Consistent with the normal cervical MRI scan (see[37] above) and Mr Doncevski’s full range of movement on examination, Dr Morris found little objective evidence of any abnormality in Mr Doncevski’s neck and concluded that there was no diagnosable abnormality.
As Mr Doncevski’s shoulder complaint is said to result from his neck condition, that claim must also fail. If I am wrong in this regard and it is alleged that Mr Doncevski suffered a separate injury to his shoulders as a result of his lifting duties with the respondent, I reject that claim because Mr Doncevski made no complaint to Dr Mahony of shoulder pain until 17 December 2003 and because of Dr Adler’s examination of the shoulders, which revealed vague symptoms inconsistent with any objective anatomical impairment. Dr Adler’s findings are consistent with Dr Morris’ conclusion that Mr Doncevski has no rotator cuff problem in his shoulders.
It follows that I do not accept that Mr Doncevski suffered an injury to his neck or shoulders as a result of the work he performed with the respondent, or that his neck and shoulder symptoms have resulted from his back injury.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I have concluded, for the reasons given in this decision, that the Arbitrator’s determination is correct.
DECISION
For the reasons given in this decision, the Arbitrator’s determination of 6 May 2009 is confirmed.
COSTS
Each party is to pay his or its own costs of the appeal.
Bill Roche
Deputy President
25 August 2009
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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