Drca v KAB Seating Systems Pty Ltd
[2015] NSWWCCPD 10
•13 February 2015
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10 | ||
| APPELLANT: | Rajko Drca | ||
| RESPONDENT: | KAB Seating Systems Pty Ltd | ||
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | ||
| FILE NUMBER: | A1-1516/14 | ||
| ARBITRATOR: | Mr B Batchelor | ||
| DATE OF ARBITRATOR’S DECISION: | 21 October 2014 | ||
| DATE OF APPEAL DECISION: | 13 February 2015 | ||
| SUBJECT MATTER OF DECISION: | Factual findings; whether worker injured his neck; alleged failure to give reasons; whether worker suffers from a gastrointestinal condition as a result of medication taken for an accepted back injury; assessment of expert evidence; application of principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; standard of proof; meaning of balance of probabilities; fresh evidence or further evidence on appeal; s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; failure to properly prepare case for arbitration | ||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Carters Solicitors | |
| Respondent: | Sparke Helmore Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. Paragraph 4 of the Certificate of Determination of 21 October 2014 is revoked and the question of whether the appellant worker’s condition in his upper and lower digestive tract has resulted from the injury to his lumbar spine on 5 July 2012 is to be re-determined by a different Arbitrator. 2. Paragraphs 1, 2, 3, 5 and 6 of the Certificate of Determination of 21 October 2014 are confirmed. 3. No order as to costs. | ||
INTRODUCTION
This appeal involves challenges to factual findings that the worker did not injure his neck and that his gastrointestinal symptoms did not result from an accepted injury to his back. For the reasons explained below, the first challenge fails but the second succeeds.
BACKGROUND
The appellant worker, Rajko Drca, works for the respondent employer, KAB Seating Systems Pty Ltd (the respondent) making parts for vehicle and office seats. It is not disputed that he injured his back at work on 5 July 2012 while lifting a heavy bundle of metal tubes. After six or seven weeks off, he returned to work on light duties.
On 19 December 2012, while still working on light duties because of the July back injury, Mr Drca was getting up from a crouching position when he felt severe back pain which caused him to fall and strike his head and right knee. The Arbitrator found, and it has not been challenged on appeal, that this fall resulted from the original back injury.
Within minutes of this incident, Mr Drca saw the respondent’s first aid officer, Rodney Jenkins, and completed and signed an incident/accident report form in which he marked a diagram to indicate he had injured his forehead, neck and right knee. A second incident/accident report form in evidence, which is unsigned, but which is assumed to have been completed by Mr Jenkins, also has a diagram with marks indicating that Mr Drca injured his forehead, neck and right knee.
Mr Drca saw his general practitioner, Dr Kris Tomka, and was off work until 10 January 2013, when he resumed on light duties.
In an Application to Resolve a Dispute (the Application) filed in the Commission on 31 March 2014, Mr Drca sought lump sum compensation in respect of whole person impairment due to injuries to his lumbar spine, cervical spine, right lower extremity and upper and lower gastric tract. The impairment of the lumbar spine was alleged to have resulted from the injuries on 5 July 2012 and 19 December 2012, and the remaining impairments were alleged to have resulted from the injury on 19 December 2012 or, in the alternative, to be consequential conditions that resulted from the initial back injury on 5 July 2012.
The respondent’s insurer, Allianz Australia Workers Compensation (NSW) Ltd (Allianz), accepted liability for the injury to the lumbar spine on 5 July 2012, but disputed that Mr Drca sustained any injury arising out of or in the course of his employment on 19 December 2012. Specifically, in its s 74 notice dated 14 October 2013, Allianz disputed that Mr Drca suffered any injury to his gastrointestinal system as a result of the accident on 5 July 2012 and disputed the claim for whole person impairment “for the gastrointestinal system as same has not arisen from an accepted workplace injury”.
In a reserved decision delivered on 21 October 2014, the Arbitrator identified the issues to be:
“(a) Did the applicant sustain injury arising out of or in the course of his employment on 19 December 2012 (s 4 of the 1987 Act), and if so, was the applicant's employment with the respondent a substantial contributing factor to any such injury (s 9A of the 1987 Act)?
(b) Did the applicant suffer an injury to his cervical spine on 19 December 2012 or alternatively a medical condition in his cervical spine on 19 December 2012 as a consequence of injury to the lumbar spine on 5 July 2012?
(c) Did the applicant suffer an injury to his right knee on 19 December 2012 or alternatively [the] medical condition in his right knee on 19 December 2014 as a consequence of injury to the lumbar spine on 5 July 2012?
(d) Did the applicant suffer an aggravation of his lumbar spinal injury on
19 December 2012, and if so was the applicant's employment by the respondent the main contributing factor to such aggravation?(d) Did the applicant suffer a medical condition in his upper and lower digestive tract as a consequence of injury to the lumbar spine on 5 July 2012?
(e) Can any permanent impairment sustained by the applicant as a result of his undisputed injury to his lumbar spine on 5 July 2012 be aggregated with any permanent impairment found to have occurred as a result of the incident on
19 December 2012?” (numbering as per original)The Arbitrator determined that:
(a) while Mr Drca struck his head on 19 December 2012, he did not injure his cervical spine in that incident or as a consequence of the back injury on 5 July 2012;
(b) as a consequence of his back injury on 5 July 2012, Mr Drca injured his right knee on 19 December 2012 when he fell because of sudden back pain, which caused him to collapse and strike his head and right knee;
(c) Mr Drca did not suffer a further injury to his lumbar spine on 19 December 2012;
(d) Mr Drca had not discharged the onus of proof to show that the condition in his upper and lower gastrointestinal tract arose as a result of the ingestion of medication taken for his back injury on 5 July 2012, and
(e) as any impairment found in the right lower extremity (right knee) is a consequence of the injury to the lumbar spine on 5 July 2012, that impairment is to be assessed with any impairment assessed as a result of the injury to the lumbar spine.
Consistent with these findings, the Commission issued a Certificate of Determination on 21 October 2014 in the following terms:
“The Commission determines:
1. The applicant suffered injury to his lumbar spine on 5 July 2012 arising out of or in the course of his employment with the respondent. Permanent impairment to the lumbar spine as a result of that injury will be referred to an Approved Medical Specialist for assessment.
2. The applicant also suffered a medical condition in his right knee on 19 December 2012 as a consequence of injury to his lumbar spine on 5 July 2012. Assessment of that condition will be referred to an Approved Medical Specialist for assessment.
3. There is an award in favour of the respondent for the applicant's claim for injury to the cervical spine on 19 December 2014 or the medical condition in his cervical spine as a consequence of injury to the lumbar spine on 5 July 2012.
4. There is an award in favour of the respondent for the applicant’s claim for the medical condition in his upper and lower digestive tract as a consequence of injury to the lumbar spine on 5 July 2012.
5. The matter is remitted to the Registrar for assessment for permanent impairment of the lumbar spine and the right lower extremity (right knee) as a result of injury on 5 July 2012.
6. The documents to be referred to the Approved Medical Specialist are:
(a) the Application to Resolve a Dispute and attachments;
(b) the Reply and attachments;
(c) Applications to Admit Late Documents and attachments received:
(i) 17 June 2014;
(ii) 18 June 2014;
(iii) 31 July 2014;
(iv) 22 August 2014, and
(v) 1 September 2014.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
Mr Drca has challenged the Arbitrator’s determinations in paragraphs 3 and 4 of the Certificate of Determination relating to the cervical spine and the upper and lower digestive tract. For convenience, I will refer to the claim for the upper and lower digestive tract as the gastrointestinal symptoms or gastrointestinal condition.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions 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 Mr Drca did not suffer an injury to his lumbar spine on 19 December 2012 as a consequence of the injury on 5 July 2012;
(b) ignoring and not addressing Mr Drca’s evidence, the evidence from Mr Jenkins, and the evidence in the incident/accident report forms dated 19 December 2012 recording injury to the neck;
(c) failing to give adequate or sufficient reasons for finding that Mr Drca did not suffer an injury to his cervical spine;
(d) determining that Mr Drca did not suffer a consequential condition in his upper and lower gastrointestinal tract as a result of the ingestion of medication resulting from the back injury of 5 July 2012;
(e) applying the incorrect standard of proof when he determined that there was not sufficient evidence for him to be “comfortably satisfied that the [gastrointestinal tract] condition arose as a result of the ingestion of pain relief medication taken following the back injury on 5 July 2012” ([46]), and
(f) basing his findings, with respect to the consequential gastrointestinal injury, on an incomplete and/or erroneous reading by him of the clinical notes of Dr Tomasevic, Mr Drca’s treating general practitioner.
In addition to the above issues, Mr Drca has also sought to tender fresh or additional evidence on appeal.
A preliminary point should be noted about the above issues. Though the first ground purported to challenge the Arbitrator’s finding that Mr Drca did not suffer an injury to his lumbar spine on 19 December 2012, the submissions in support of this ground make it clear that the challenge is to the finding that Mr Drca did not injure his cervical spine on that day or as a consequence of the back injury on 5 July 2012.
The real issues come down to the Arbitrator’s findings that Mr Drca did not injure his cervical spine on 19 December 2012 and does not suffer a gastrointestinal condition as a result of the ingestion of medication for his accepted back injury. It is therefore appropriate to deal with these issues under the following headings: fresh evidence or additional evidence, injury to the cervical spine, and gastrointestinal condition.
FRESH EVIDENCE OR ADDITIONAL EVIDENCE
Mr Drca seeks to tender, as fresh evidence or additional evidence, a report from Dr Tomasevic dated 14 November 2014. That report states:
“Thank you for your letter dated 12 November 2014. Thank you also for the copies of the notes in relation to the Workers Compensation Commission, Outcome of Application for dispute Resolution dated 21 October 2014, Matter Number: 001516/14.
I Dr Predrag Tomasevic am a general practitioner. I have consulted Mr Rajko Drca on several occasions for various medical conditions. I have reviewed my clinical records for Mr Rajko Drca.
In my opinion as a general practitioner and based on my clinical records, Mr Rajko Drca’s current gastrointestinal symptoms are a direct result of the medications that have been prescribed to him due to the injuries sustained in the work related accident on the 5 July 2012.
Prior to the work related accident on the 5 July 2012, I did not treat Mr Drca for any significant gastrointestinal symptoms or conditions.
If required you may contact a gastroenterologist in relation to their medical specialist opinion regarding the cause of Mr Drca’s current gastrointestinal symptoms.
I trust that this report will be of assistance.”
Submissions
In support of the application to admit this report, Mr Drca’s counsel, Mr Frank Curran, submitted that:
(a) the report “clarifies clinical note entries which notes were before [the] Arbitrator”;
(b) the report was not available at the date of the arbitration, and
(c) substantial injustice would be occasioned to Mr Drca if the “clarifying report was not in evidence on the Appeal”.
Counsel for the respondent, Ms E Wood, has opposed the admission of the report on the following grounds:
(a) Mr Drca has made no submission as to why the report was not available and could not reasonably have been obtained before the proceedings commenced;
(b) Mr Drca’s legal representatives were clearly investigating a potential claim for the alleged gastrointestinal symptoms prior to July 2013, when a report from Dr Greenberg, Mr Drca’s treating gastroenterologist, was obtained;
(c) the proceedings were not commenced until March 2014;
(d) Dr Tomasevic’s clinical notes were available to the parties in July 2014;
(e) the matter was adjourned from 6 August 2014 to 24 September 2014 because Dr Tomka’s records had not been produced, but it was not foreshadowed that a report from Dr Tomasevic would be obtained;
(f) Mr Drca had every opportunity to obtain a report from Dr Tomasevic before the matter proceeded to arbitration on 24 September 2014, but the report was not requested until after the decision had been delivered;
(g) Mr Drca has not demonstrated why a decision not to allow the report into evidence would cause a substantial injustice;
(h) the report is of little probative value, given the multiple medications prescribed for Mr Drca for non-work related conditions, the findings on gastrointestinal investigations and the deference by Dr Tomasevic to a potential view of a gastroenterologist, and
(i) if the report were admitted, the respondent would be prejudiced.
Discussion and findings
The admission of fresh evidence on appeal is governed by s 352(6) of the 1998 Act which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
As explained by Barrett JA (Macfarlan JA agreeing) in Chep Australia Ltd v Strickland [2013] NSWCA 351, s 352(6) involves two threshold questions that are alternatives. The first goes to the issue of availability of the evidence in advance of the proceedings. The second involves an assessment of whether continued unavailability of the evidence “would cause substantial injustice in the case”. The power to admit the evidence is discretionary but the discretion only becomes available if the Commission is satisfied as to one of the threshold matters.
Barrett JA added (at [31]) that, if the first test is not satisfied, that is, if the evidence could, with reasonable diligence, have been obtained and tendered at the arbitration, the second test requires a decision as to the result that “would” emerge if the evidence were taken into account and the result that “would” emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion of the evidence.
The power to admit fresh or additional evidence is therefore concerned with evidence which, if accepted, would have been likely to demonstrate that the decision appealed against was erroneous (Northern NSW Local Health Network v Heggie [2013] NSWCA 255 per Sackville AJA (Ward JA agreeing) at [66]).
There is no evidence that Dr Tomasevic would not have been able to provide his report prior to the arbitration, had he been asked to do so. Therefore, the only reasonable conclusion is that, with reasonable diligence, his evidence could have been obtained well before the arbitration and tendered at that time in accordance with the Commission’s rules. Mr Drca’s legal advisers did nothing to obtain a report from Dr Tomasevic until after the Arbitrator’s decision. It follows that Mr Drca cannot satisfy the first limb of s 352(6).
The question remains, however, whether the refusal to grant leave to rely on the additional evidence would cause a substantial injustice in the case. This requires a consideration of what the result “would” be if the evidence were excluded and what the result “would” be if it were admitted. This requires careful consideration of the merits of the grounds of appeal on this issue.
For the reasons explained below, I have concluded, without regard to the additional evidence sought to be tendered on appeal, that the Arbitrator erred on a number of material points and that the matter relating to Mr Drca’s gastrointestinal symptoms must be re-determined. As Mr Drca seeks to tender further evidence, it is appropriate that the re-determination be conducted at a second arbitration before a different Arbitrator when both sides will have the opportunity to tender such evidence as they consider necessary. It follows that there is no injustice if the additional evidence is not admitted on appeal and the application to rely on it, on the appeal, is refused.
The legal profession is reminded, yet again, that it will only be in the most exceptional case where a party will be permitted to tender on appeal evidence that, with reasonable diligence, was readily available at the arbitration. Arbitrations are not a dress rehearsal where the parties can await the outcome and then attempt to tender, on appeal, evidence that could and should have been tendered at the arbitration, as if the arbitration was merely a preliminary hearing.
INJURY TO THE CERVICAL SPINE
The appellant’s submissions
Mr Curran referred to the two incident/accident forms in evidence and the markings on the diagrams in those forms, both of which had marks indicating, as the Arbitrator found, a “reference to an injury to the neck, right side of the head and right knee” ([21]). He said that there was no challenge to Mr Drca’s evidence, in his statement of 20 February 2014, that he had injured his neck on 19 December 2012 and the respondent had not called Mr Jenkins or challenged the incident/accident form completed by him.
Mr Curran contended that the Arbitrator’s reasons did not address how the reports of the neck injury on 19 December 2012 to the respondent could be explained away as contrary to or inconsistent with Mr Drca suffering a neck injury on that day. He said that the Arbitrator focused unduly on the limited clinical notes and records, to the exclusion of the overall evidence and the specific evidence of direct complaint on the day. The Arbitrator erred, so it was argued, in attaching “no weight” to Mr Drca’s report on 19 December 2012 of what happened to him.
It was common ground that Dr Tomka issued WorkCover medical certificates on 19 December 2012, 31 December 2012 and 9 January 2013, which diagnosed “Head Contusion”, and that those certificates did not refer to a neck/cervical spine injury. (There were in fact four certificates issued by Dr Tomka in this period; the three mentioned by Mr Curran and a certificate on 21 December 2012. They all diagnosed “Head Contusion”.) It was also common ground that the first reference to any neck/cervical spine symptoms in Dr Tomasevic’s notes was on 31 January 2013.
With respect to medical certificates issued by Dr Tomka, Mr Curran submitted that the doctor appeared to have a standardised process for issuing certificates for a primary or more significant problem and did not record every diagnosis on the basis of complaints made to him. This was “pointed up” by the fact, as noted by the Arbitrator at [69], that Dr Tomka recorded a complaint of neck pain on 11 October 2012 but none of his certificates for October refered to any neck/cervical condition (the entry on 11 October 2012 was in fact by Dr Tomasevic not Dr Tomka). Therefore, the absence of a reference to a neck/cervical injury in the certificates issued by Dr Tomka on 19 December 2012, 31 December 2012 and 9 January 2013 is of little significance.
Mr Curran submitted that Mr Drca’s back injury (on 5 July 2012) was the main focus of complaints and treatment. Dr Tomka’s notes were not available to reveal whether Mr Drca complained of cervical spine symptoms on 19 December 2012, 31 December 2012 or 9 January 2013. Mr Curran contended that it would be highly unusual for Mr Drca to see Dr Tomka, at that time his nominated treating doctor, on the same day of the incident and not tell him he had injured his head, neck and right knee.
Mr Curran noted that a physiotherapist, Achini Soysa, recorded on 13 January 2013 that Mr Drca had a “normal neck ROM”, which, he contended, was consistent with Mr Drca making some complaint of pain at that time.
Mr Curran submitted that, in the circumstances, the Arbitrator erred in not finding that Mr Drca injured his neck on 19 December 2012 consequential to his back injury on 5 July 2012, noting that there was no suggestion that Mr Drca did not have a genuine neck condition, was feigning or fabricating a neck complaint. There was no other incident that explains Mr Drca’s neck complaints recorded on 31 January 2013. In his report of 26 November 2013, Dr Guirgis, Mr Drca’s treating specialist, diagnosed post-traumatic mechanical derangement of the cervical spine by musculo-ligamentous sprain/strain with intervertebral disc involvement.
Mr Drca was clearly more concerned about his back and a possible significant head injury and was taking pain killing medication. There were obvious strains in the doctor-patient relationship with Dr Tomka, who stopped being Mr Drca’s nominated treating doctor on 9 January 2013, and thereafter the first recorded complaint about the neck is to Dr Tomasevic on 31 January 2013.
In light of the Arbitrator’s findings (at [69]) that Mr Drca “undoubtedly struck his head” on 19 December 2012, that he “may have experienced pain in that area of his body”, and in light of the evidence overall, the Arbitrator should have found that Mr Drca suffered an injury to his cervical spine within s 4 of the 1987 Act.
In support of a separate ground of appeal, namely the failure to give adequate reasons, Mr Curran submitted that the “sole factor” in the Arbitrator’s “decision making process” with regard to the alleged injury to the cervical spine on 19 December 2012, was the review of the medical evidence both prior to and after that date. He said that the Arbitrator made no reference to the unchallenged fact that Mr Drca and Mr Jenkins had recorded an injury to the neck on 19 December 2012, did not refer to the physiotherapist’s examination of Mr Drca for range of neck movement on 13 January 2013, did not refer to the attendance on Dr Tomasevic on 31 January 2013, or to the submission that due allowance be made for the medical problems Mr Drca had because of his more serious back injury and head injury.
The respondent’s submissions
Ms Wood submitted that the Arbitrator took into account the incident/accident report forms, and the lay evidence relied upon by Mr Drca, both in terms ascertaining how the incident on 19 December 2012 occurred and what body parts may have been injured. She said that the Arbitrator weighed all the evidence and that it was open to him to conclude that the cervical spine was not injured as alleged in the incident on 19 December 2012.
She submitted that although the neck area was shaded on the incident/accident report forms, which may have indicated “symptoms” (emphasis included in original) in the cervical region, in the context of the pre-existing symptoms recorded in October 2012 (and attributed to the July 2012 injury) there was no description or record of mechanism of injury to the neck and no medical evidence to link the neck symptoms to the event on 19 December 2012 until Mr Drca saw Dr Guirgis in May 2013.
While Dr Tomasevic, on 31 January 2013, and Dr David Manohar, consultant physician, in February 2013, both recorded neck symptoms, they did not take a history of the neck having been injured and did not attribute those symptoms to the event of December 2012. Had there been no history of previous neck symptoms, Ms Wood said that the record of complaint may have assisted Mr Drca. However, Mr Drca complained to his general practitioner of neck pain eight weeks prior to the incident on 19 December 2012.
Ms Wood contended that the evidence did not disclose that Mr Drca reported an injury to his neck on 19 December 2012. She argued that the report from Ms Soysa should be given significant weight because it would be reasonable for a physiotherapist to test the range of movement of the neck following a head injury, and that had there been any symptoms in the neck the physiotherapist would have recorded those symptoms. Further, if the neck had been injured, there would have been some range of movement complained of by Mr Drca as causative of pain. It was therefore appropriate for the Arbitrator to take into consideration (as he did at [68]) the absence of any notation of complaint of neck symptoms or (reduced) range of movement by the physiotherapist.
Ms Wood submitted that it was open the Arbitrator to find that the contemporaneous records were a more reliable source of evidence and that the absence of complaints to treating doctors was of significance. She said that, though there had been no cross-examination, the allegation of injury to the cervical spine was challenged on the evidence tendered. Based on Department of Education and Training v Ireland [2008] NSWWCCPD 134 (Ireland), the Arbitrator did not err in preferring the contemporaneous medical from the treating doctors to that of the uncorroborated evidence of Mr Drca in his statements. She said that the Arbitrator gave sound and cogent reasons for his determination.
Discussion and findings
The issues raised under this heading require a detailed analysis of the Arbitrator’s reasons and the evidence in general.
The Arbitrator noted (at [21]) that the diagram on each of the incident/accident forms in evidence, one completed by Mr Drca and the other assumed to have been completed by Mr Jenkins, had a “reference to an injury to the neck, right side of the head and right knee”. (This was a reference to clear and specific markings on a diagram of a human figure on each form.) The Arbitrator again referred to these diagrams (at [60]) when he was dealing (between [47]–[60]) with the respondent’s submissions that Mr Drca suffered no injury on 19 December 2012.
Under the heading “Head injury/cervical injury”, the Arbitrator said it was quite clear that Mr Drca suffered a head injury on 19 December 2012, in the form of a contusion, serious enough for Dr Tomka to suggest a CT scan of the head on 31 December 2012 (a brain CT on 12 February 2013, arranged because of continuing dizziness, was normal apart from a deviated septum and swelling of the right inferior nasal turbinate). The issue was whether, as a result of that blow to the head, Mr Drca also injured his cervical spine.
The Arbitrator referred (at [62]) to Dr Tomasevic’s note on 10 January 2013, which referred to, among other things, Mr Drca suffering a head injury on 19 December 2012, for which he had been referred for a CT scan of the head. The note also recorded that Dr Tomka ceased being Mr Drca’s nominated treating doctor on 9 January 2013 and that Dr Tomasevic had assumed that role.
The Arbitrator also referred (at [63]), in detail, to Mr Drca’s attendance on Dr Tomasevic on 15 January 2013. On that day, Dr Tomasevic (not Dr Tomka, as stated in the Arbitrator’s decision) took a detailed note of the 19 December 2012 incident. He recorded that Mr Drca felt severe back pain when he stood up and that he fell and hit his head on a metal bracket and then fell to the ground. The note added that “POST FALL 19/12/12 OCCASIONAL DIZZINESS, UNSTEADY FEELING, RIGHT KNEE PAINS”. Under “Examination”, as the Arbitrator noted, there is a reference to lower back pains, left and right hip pain, left and right lower limb pains, left and right sciatica, dysaesthesia left and right feet, and right knee pains. Significantly, there was no reference to any neck or cervical spine symptoms.
Next, the Arbitrator referred (at [65]) to Dr Tomasevic’s consultations with Mr Drca on 17, 18, 22, 23 and 31 January 2013, accurately recording that there were extensive references in the notes to lower back pains, left and right hip pains, lower limb pains, occasional left and right sciatica, dysaesthesia of the left and right feet, anxiety, insomnia, occasional dizziness, unsteady feeling and right knee pain. Again, there were no references to neck or cervical spine symptoms.
The Arbitrator added that the notes recorded referrals to Ms Soysa and Dr Manohar. He correctly noted that there was no reference in Dr Tomasevic’s notes to any complaint in respect of the cervical spine until 31 January 2013. On that day, after recording the injuries noted in the preceding paragraph, and anxiety, insomnia and depression, and noting treatment provided for Mr Drca’s lumbar spine by Dr Manohar, Dr Tomasevic wrote “Prescription printed: PANADOL BACK + NECK LONG LASTING CAPLET 665 mg I – II 3 times a day PRN MAX 6TAB/D”. Subsequent references in Dr Tomasevic’s clinical notes, in respect of the incident of 19 December 2012, referred to “occasional pains in neck and right knee pains”.
The first such entry appeared on 8 February 2013, which reads:
“POST FALL 19/12/12 OCCASIONAL DIZZINESS, UNSTEADY FEELING, OCCASIONAL HEADACHES, OCCASIONAL PAINS IN NECK & RIGHT KNEE PAINS”
The Arbitrator recorded (at [67]) Dr Tomasevic’s note on 11 October 2012, when the injury of 5 July 2012 was discussed. The note recorded, among other things:
“FOLLOWING WORK INJURY 5/7/12 PATIENT SUFFERING FROM PAINS NECK AND MID TO LOWER BACK, BILAT HIPS, BILATERAL LOWER LIMBS”
The Arbitrator then referred to the report from Ms Soysa, dated 13 January 2013, and reproduced (at [68]) the following passage from it:
“[Mr Drca] reports a new accident at work, where he collapsed and hit his head on a bracket of a trolley. Since the accident, he reports ringing in his ears and his head feeling heavy. No obvious swelling can be observed and normal neck ROM.”
(The reference to “a new accident at work” was clearly a reference to the incident on 19 December 2012.)
After this extensive review of the relevant evidence, which followed a detailed summary of the parties’ submissions, the Arbitrator concluded, at [69]:
“A review of this medical evidence both prior to and after 19 December 2012 leads me to conclude that, whilst [Mr Drca] undoubtedly struck his head in the incident of
19 December 2012, he did not suffer an injury to his cervical spine. He may have experienced pain in that area of his body (which he had reported to Dr Tomka [sic Dr Tomasevic] on 11 October 2012 following the earlier work injury on 5 July 2012). However there was no reference in the medical material generated immediately following that injury to any injury to the cervical spine or any investigation of any such injury. I am not satisfied that [Mr Drca] suffered an injury to his cervical spine on 19 December 2012 either as a consequence of injury to the lumbar spine on 5 July 2012 or in the form of a frank incident on that day.”
In light of the Arbitrator’s reasons, Mr Curran has not established that the Arbitrator erred in his approach or conclusion on the issue of whether Mr Drca injured his neck on 19 December 2012 or developed neck symptoms as a result of the back injury in July 2012.
The submission that there was no “challenge” to Mr Drca’s evidence, with regard to whether he injured his neck on 19 December 2012, was incorrect. Ms Wood submitted that there was no such injury (T3.7) and relied on the evidence referred to above in support of that submission. It was not necessary for that challenge to be made in cross-examination for it to be clear that it was in issue (New South Wales Police Force v Winter [2011] NSWCA 330).
The Arbitrator was not bound to accept Mr Drca’s evidence, as expressed in his statement of 20 February 2014, that he had injured his neck on 19 December 2012. That evidence was inconsistent with a substantial body of credible contemporaneous medical evidence (Bulstrode v Trimble [1970] VR 840 at 849; HSH Hotels (Australia) Ltd v Multiplex Constructions Pty Ltd [2004] NSWCA 302 (Tobias JA (Mason P and Hodgson JA agreeing)) at [87]). The Arbitrator did not overlook that statement, but expressly referred to it at [53]. In light of the evidence overall, he did not accept Mr Drca’s evidence on this point. That involved no error.
Contrary to Mr Curran’s submissions, the Arbitrator did deal with the incident/accident forms. The Arbitrator expressly noted the incident/accident forms and accepted, based on those forms, that Mr Drca “may have experienced pain” in his neck on 19 December 2012. However, on their own, the forms did not establish that Mr Drca suffered a personal injury, that is, some sudden or identifiable pathological change (Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310, per Kirby J at 347), on 19 December 2012 or that, as a result of his back injury on 5 July 2012, he suffered a consequential condition in his neck.
The Arbitrator said there was no reference in the medical material generated immediately following the injury to any injury to the cervical spine, nor any investigation of such injury. He then concluded that he was not satisfied that Mr Drca had injured his cervical spine on 19 December 2012. Thus, it is tolerably clear that the Arbitrator did not accept that the diagrams in the incident/accident forms established that Mr Drca had injured his cervical spine as alleged. That does not mean that he gave the incident/accident forms “no weight”, as Mr Curran contended.
I do not accept that the Arbitrator focused “unduly” on the clinical notes and records. Dr Tomasevic’s notes were not the usual incomprehensible hand written scribble that passes for doctors’ clinical notes. They were a typed and detailed record of Mr Drca’s complaints as a result of the injury. The Arbitrator was entitled to consider them and take them into account in determining the issue before him. He did not focus on them to the exclusion of the evidence overall, as Mr Curran contended. He assessed them in light of the other evidence. It follows that I do not accept that the Arbitrator gave them “no weight”.
Whether Dr Tomka had a “standardised process” for issuing medical certificates is of limited relevance in resolving the issue before the Arbitrator. In any event, this was not a submission made at the arbitration and it is not an error for an Arbitrator not to deal with an issue never argued (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111). The Arbitrator referred (at [24] and [58]) to the absence of neck symptoms in Dr Tomka’s certificates and he was entitled to do so. He also noted the absence of Dr Tomka’s clinical notes, which it was agreed did not give rise to a Jones v Dunkel [1959] HCA 8; 101 CLR 298 inference. Mr Curran’s submission is really an attempt to conduct the appeal as a rehearing, something that is not permitted in a s 352 appeal.
The submission that Mr Drca’s back problem was the main focus of complaints did not establish error by the Arbitrator. It is correct that Mr Drca’s back injury had been a continuing problem. That fact did not provide an explanation for the absence of a complaint of neck symptoms in the contemporaneous material in December/January and Mr Drca’s evidence did not suggest that it did. That is especially so where that material recorded Mr Drca’s complaints of head and knee symptoms as a result of the 19 December 2012 incident, but did not record any complaint of neck symptoms until 31 January 2013.
The submission that it would be highly unusual for Mr Drca to see Dr Tomka and not tell him he had injured his head, neck and right knee was completely speculative. It did not address whether the Arbitrator erred, but was an attempt to conduct the appeal as a rehearing. The absence of a complaint of neck symptoms in Dr Tomka’s certificates was a point that the Arbitrator was entitled to consider, and did consider, in his assessment of the case.
The report from Ms Soysa does not assist Mr Drca and does not establish error by the Arbitrator. Merely recording that Mr Drca had a “normal neck ROM” may or may not have been consistent with Mr Drca making a complaint of neck pain. The Arbitrator noted Ms Soysa’s report (at [68]), which made no reference to Mr Drca suffering from neck symptoms, but did record a complaint of ringing in his ears and that his head felt heavy. In any event, the finding of a full range of movement points to Mr Drca having suffered no injury to his neck, though, on its own, was not determinative and the Arbitrator did not treat it as if it was.
The argument that no other incident explains Mr Drca’s neck complaints, as recorded on 31 January 2013, was not an argument presented at the arbitration and does not establish error by the Arbitrator. It was another attempt to conduct the appeal as a rehearing. It is rejected. In any event, the argument is without merit. It was for Mr Drca to establish his case. The Arbitrator was not satisfied that he had done so. It was open to him to reach that conclusion.
Similarly, the references to Mr Drca being more concerned about his back, a possible significant head injury, to him taking pain killing medication, and strains in the doctor-patient relationship with Dr Tomka, do not establish error by the Arbitrator. They are merely general submissions as to why the result should be different. Such submissions may be appropriate in a rehearing, but have not established error by the Arbitrator.
It is not correct that the “sole factor” in the Arbitrator’s “decision making process”, with regard to the alleged cervical spine injury on 19 December 2012, was his review of the medical evidence. The Arbitrator expressly referred to the incident/accident report forms, and to the markings on those forms, Ms Soysa’s examination on 13 January 2013, and to Dr Tomasevic’s note of 31 January 2013. For the reasons explained above, none of those matters, taken together or individually, meant that the Arbitrator erred in not finding in Mr Drca’s favour on this issue.
The submission that the Arbitrator failed to give reasons is without merit. When considering a challenge to the adequacy of reasons, it must be remembered that the decision must be read as a whole and that “reasons need not be lengthy or elaborate” (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 443–444). The extent and scope of a trial judge’s (or Arbitrator’s) duty to give reasons depends upon the circumstances of the individual case (Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA (with whom Clarke JA and Hope AJA agreed)). The reasons must do justice to the issues posed by the parties’ cases (Moylan v Nutrasweet Co [2000] NSWCA 337 (at [61]) per Sheller JA (Beazley and Giles JJA agreeing)).
Moreover, when considering if an Arbitrator has complied with his or her obligation to give reasons, it is necessary to have regard to the overall sense and import of the reasons, read as a whole and without an eye attuned to the detection of error (Apache Northwest Pty Ltd v Department of Mines and Petroleum [2012] WASCA 167). In addition, courts should avoid an “overly pernickety examination of the reasons” and that the “focus of attention is on the substance of the decision and whether it addressed the ‘real issue’ presented by the contest between the parties” (per Kirby J in Roncevich v Repatriation Commission [2005] HCA 40 at [64]; 222 CLR 115).
On the issue of whether Mr Drca injured his cervical spine, the Arbitrator’s reasons, when read in their entirety, exposed his reasoning process and articulated the essential ground on which he based his decision (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA at 280). Those reasons have been analysed above and will not be repeated. The submission that the Arbitrator failed to give adequate reasons is rejected.
It follows that Mr Drca has not established that the Arbitrator erred in his approach or conclusion on this issue and this ground of appeal is unsuccessful. This result follows from the Arbitrator’s reasons, based on the evidence, and not from Ireland. That case was decided on its own facts. It did not establish any new principle of law and the constant reliance on it by respondents is inappropriate and unhelpful.
GASTROINTESTINAL CONDITION
The appellant’s submissions
Mr Curran submitted that there did not seem to be a s 74 notice denying liability for “this claimed injury”. He contended that the multiple attendances recorded by the treating doctors, and the gastric investigations by Dr Simring, gastroenterologist, in May 2014, showed a “clear clinical history of gastric issues” and provided a clear basis for the conclusions of Dr Greenberg.
Mr Curran contended that the attendances on Dr Tomasevic prior to 5 July 2012 were not significant or numerous with respect to genuine gastrointestinal symptoms. He said that the evidence established that, in the period prior to 5 July 2012, Mr Drca did not take the types and quantities of medication likely to be causative of a consequential gastrointestinal injury. However, following the incident on 19 December 2012, Mr Drca was, for the first time, prescribed Voltaren. On 11 March 2013, Mr Drca was prescribed panadol and, on 4 April 2013, Mr Drca complained to Dr Tomasevic that he felt that “Panadeine Extra may have caused epigastric pains”.
Mr Curran argued that the evidence suggested that Mr Drca’s gastrointestinal health severely worsened between 15 January 2013 and 8 May 2013, when he eventually had the gastroscopy and colonoscopy procedures, though they had been recommended earlier in 2013. He contended that the “obvious uptake in symptoms in early 2013 corresponding with the prescription of Voltaren Rapid and then Paneadeine [sic] Extra can only be ascribed to the medications prescribed and taken by [Mr Drca] over the period 15 January 2013 to 11 March 2013”.
Mr Curran submitted that, in light of the above analysis, the Arbitrator erred in determining that Mr Drca had not discharged the onus of proof on this issue. He said that the report of the gastroscopy procedure on 8 May 2013, prepared by Dr Simring, made a preliminary diagnosis of “reflux oesophagitis” and hiatus hernia. The hernia condition was long established and had never required any medication. The colonoscopy report, also prepared by Dr Simring on 8 May 2013, revealed “constipation”, which Mr Curran submitted was a “classic symptoms of gastrointestinal injury an expert tribunal such as the WCC could take account of”. There were no references to this symptom in the clinical notes dating back to 2001.
In these circumstances, Mr Curran contended that the Arbitrator fell into error in accepting that Dr Greenberg’s opinion was based on entirely fallacious premises and could not be sustained. There was evidence before the Arbitrator that Dr Greenberg accepted that Mr Drca had taken treatment by way of Tramadol, Voltaren and Panadeine Extra. Though Mr Drca ceased this medication, he ceased it after he “had succumbed to injury and this aspect was not addressed at all by the Arbitrator”.
Mr Curran argued that the Arbitrator erred in saying (at [46]) that Dr Greenberg did not provide sufficient evidence for him to be “comfortably satisfied” that the gastrointestinal condition arose as a result of the ingestion of pain relieving medication taken following the back injury of 5 July 2012. He said that it was Mr Drca’s case that both the “interconnected events” of 5 July 2012 and 19 December 2012 brought on the taking of the prescribed medications of Tramadol, Voltaren Rapid and Panadeine.
Mr Curran emphasised that the respondent called no evidence opposing Dr Greenberg’s opinion. In the circumstances, the evidence required to satisfy the civil onus was “relatively slight” and Mr Drca’s case was “readily acceptable and more than sufficient to meet the requirements of the civil onus of proof”.
Last, Mr Curran took issue with the “onus methodology employed” by the Arbitrator in his reasoning process. He said that the Arbitrator’s reference to the need for him to “be comfortably satisfied” that the condition arose as a result of the ingestion of pain relief medication taken following the back injury was an “erroneous statement of the burden of proof” and a “misconception of [the Arbitrator’s] function. The Arbitrator was required to reach a determination on the probabilities”.
The respondent’s submissions
Ms Wood argued that the onset of the gastrointestinal symptoms (both the timing and the actual symptoms) recorded by Dr Greenberg was inconsistent with the clinical notes identified by the Arbitrator. Dr Greenberg did not have access to the findings from the gastrointestinal investigations, which disclosed other pathology, that is, hiatus hernia, not previously diagnosed and preliminary diagnosis of melanosis coli. Also, Dr Greenberg had not been informed of the other non-work related medications prescribed and made no comment on their potential affect.
Ms Wood submitted that it was open to the Arbitrator to find against Mr Drca on the basis of the inconsistencies between the clinical notes and Dr Greenberg’s recorded history and complaints, Dr Greenberg’s lack of consideration of other medication taken by Mr Drca, and the fact that Dr Greenberg did not have available to him the findings following the endoscopy and colonoscopy performed on 8 May 2013.
Ms Wood said that the Arbitrator made no error and provided sufficient and cogent reasons to support each of his findings. In describing his view as not being “comfortably satisfied” he has not applied any test other than that of the civil standard, that is, on the balance of probabilities.
Discussion and findings
The Arbitrator referred to the notes from Dr Tomasevic, which covered the period from 1 December 2001 to 14 May 2014. Those notes revealed, as the Arbitrator recorded, the following entries relevant to the current claim:
(a) 20 October 2010 – occasional discomfort of the right lower abdomen and right inguinal region;
(b) 20 July 2011 – one day of upper abdominal discomfort, loose stools, no food cause, no upper respiratory tract infection and no per rectal bleeding – reason for contact “gastroenteritis”;
(c) 23 January 2012 – occasional periumbilical and lower abdominal discomfort, occasional discomfort in the mid and lower abdomen prior to the need to void, and
(d) 9 March 2012 – upper abdominal discomfort; no food cause, no upper respiratory tract infection, no per rectal bleeding – reason for contact “gastroenteritis”.
(Though Ms Wood took the Arbitrator to other entries in the notes that pre-dated 5 July 2012, the above entries appear to be the most relevant to the current claim.)
The Arbitrator also noted that Mr Drca saw Dr Tomasevic on a number of occasions prior to 5 July 2012 for anxiety and depression and had been prescribed medication (Lexapro and Zoloft) for that condition. On 2 March 2011, Dr Tomasevic noted that Mr Drca experienced anxiety and depression and that he was tolerating Lexapro well.
The Arbitrator then noted the findings at the gastroscopy and colonoscopy on 8 May 2014, which revealed reflex oesophagitis, a hiatus hernia, melanosis coli and constipation. He noted that Dr Simring recommended Nexium and a high fibre diet together with Osmolax.
The Arbitrator noted the submission by Ms Wood that none of the symptoms that Dr Greenberg recorded that Mr Drca was suffering in July 2013 were recorded by Dr Tomasevic in his notes after July 2012. In addition, the Arbitrator noted Dr Greenberg’s history that Mr Drca had no “history of gastrointestinal problems”.
Dr Greenberg listed Mr Drca’s medication, which he had stopped, to be:
“Tramadol
Voltaren Rapid 50 mg tab
Panadeine Extra Caplets 2 as needed
Escitalopram (Lexapro)
Advantan (corticosteroid) Ointment
Nexium 40 mgs tab 1 daily”
Dr Greenberg listed Mr Drca’s “current medication” to be Panadol Osteo and Cymbalta.
The Arbitrator noted Ms Wood’s submission that only Tramadol, Voltaren and Panadeine Extra would be attributable to Mr Drca’s back injury and that Dr Greenberg’s opinion should not be accepted without some substantive evidence from the treating practitioners that the medications Mr Drca was using for his work related injuries were the cause of his gastrointestinal symptoms. Further, she submitted that Dr Greenberg’s opinion was based on an incorrect history that Mr Drca had no gastrointestinal problems prior to the injury.
The Arbitrator concluded, at [45]–[46]:
“45.I think there is merit in the respondent’s submission in respect of this consequential condition. It is quite clear that [Mr Drca] did have some history of pre-existing gastrointestinal problems. My reading of the clinical notes of Dr Tomasevic after July 2012 does not reveal complaints of the significant side effects from the medication recorded by Dr Greenberg. Lexapro, which the applicant was prescribed for treatment of his depression, is not a medication for pain relief of orthopaedic injuries, and the Nexium referred to in the records was prescribed for treatment of the condition for which [Mr Drca] had to undergo a gastroscopy investigation. As noted by the respondent, the only medication recorded by Dr Greenberg (on 29 July 2013) for treatment of the work place injury is Tramadol, Voltaran and Panadeine Extra all ceased by [Mr Drca]. The current medication is recorded as Panadol Osteo (clearly for pain relief) and Cymbalta (for treatment of depression).
46.I accept the respondent’s submission that [Mr Drca] has not discharged the onus of proof on him to show that the consequential condition in his upper and lower gastrointestinal tract arose as a result of the ingestion of medication resulting from the back injury of 5 July 2012. In my view the report of Dr Greenberg, when considered along with the clinical notes of Dr Tomasevic do not provide sufficient evidence for me to be comfortably satisfied that the condition arose as a result of the ingestion of pain relief medication taken following the back injury on 5 July 2012. Accordingly there will be an award for the respondent in respect of this claim.”
There are a number of difficulties with the Arbitrator’s decision on this issue.
While it is correct that, as the Arbitrator noted, Mr Drca had a history of pre-existing gastrointestinal problems, those problems were not so numerous or significant to justify a rejection of Dr Greenberg’s evidence. The complaints noted at [83] above were relevant, but had to be viewed in context of Mr Drca’s history, supported by Dr Tomasevic’s notes, of a worsening of his gastrointestinal symptoms in 2013. That worsening of Mr Drca’s gastrointestinal symptoms occurred after a period of sustained use of Voltaren, Tramadol and Panadeine Extra.
It was not determinative that Dr Greenberg’s history of Mr Drca’s symptoms did not accord precisely with Dr Tomasevic’s notes, or that Dr Greenberg had no history of Mr Drca’s previous episodes of gastroenteritis. Even in evidence based jurisdictions, compliance with the usual requirements for expert evidence “does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report” (per Beazley JA (as her Honour then was) (Giles and Tobias JJA agreeing) in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 at [82] (Hancock)).
The facts proved do not have to correspond with complete precision to the proposition on which the opinion is based (Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844 at [9]). The focus of attention is to ensure that the Commission, as the tribunal of fact, is placed in a position where it can examine and assess the evidence presented to it. That “can occur without adopting the true factual basis approach” (per Spigelman CJ in ASIC v Rich [2005] NSWCA 152; 218 ALR 764 at [105]). In Hancock, Beazley JA accepted this analysis as “clearly correct” ([78]).
In light of these authorities, and having regard to the totality of the evidence, Dr Greenberg’s history provided a fair climate for the consideration of his opinion (Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509–510). In circumstances where the respondent called no evidence on this issue, the Arbitrator erred in (apparently) discounting Dr Greenberg’s evidence because he did not have a completely accurate history.
Contrary to the Arbitrator’s view, the worsening of Mr Drca’s gastrointestinal symptoms, and the link between the worsening of those symptoms and the medication he was taking for his back injury, was corroborated by Dr Tomasevic’s notes of 4 April 2013, which recorded that Mr Drca felt that Panadeine Extra may have caused epigastric pains. On 8 April 2013, Dr Tomasevic discussed a referral to a gastroenterologist, but Mr Drca was reluctant to accept a referral at that stage. Dr Tomasevic later noted further complaints of abdominal pain by Mr Drca and ultimately did refer him to Dr Simring for investigations.
It is true that Dr Tomasevic did not record all of the gastrointestinal complaints recorded by Dr Greenberg. However, that is not determinative in a case where there is no doubt that Mr Drca has such symptoms. Significantly, Dr Tomasevic did record complaints of epigastric pains in April 2013, which Mr Drca felt may have been caused by Panadeine Extra, that is, by the medication for his back pain.
The Arbitrator was correct to note that Lexapro was prescribed for Mr Drca’s pre-existing depression and anxiety and not as a result of his back injury. However, though he did not expressly say so, the Arbitrator appears to have considered that that was a reason for not accepting Mr Drca’s claim. There was no justification for that view, if that was his view.
When Mr Drca complained to Dr Tomasevic that he thought the Panadeine Extra was causing his epigastric pains, Dr Tomasevic advised Mr Drca to cease that medication and any medications that caused abdominal pain. Significantly, Dr Tomasevic did not recommend that Mr Drca cease the medication he was taking for his depression, that is, Lexapro and, later, Cymbalta. The reasonable inference is that Dr Tomasevic did not consider that either of those medications caused Mr Drca’s epigastric pains.
The relevance of the Arbitrator’s reference to Nexium is unclear. It was medication to treat Mr Drca’s gastrointestinal symptoms and it could hardly be suggested that it caused them. Therefore, it is irrelevant to the claim being considered.
The significance of the Arbitrator’s reference to “the only medication” recorded by Dr Greenberg for treatment of the work injury, namely Tramadol, Voltaren and Panadeine Extra, having been ceased by Mr Drca is also unclear. Exactly when Mr Drca ceased all of these medications is not known. It is clear that he was taking them well into 2013, when his gastrointestinal symptoms recommenced.
In any event, Dr Greenberg was well aware that Mr Drca had, by the time of his examination in July 2013, stopped taking Tramadol, Voltaren and Panadeine Extra and, notwithstanding that fact, was clearly satisfied that that medication had caused significant gastro-oesophageal reflux and chronic constipation, both things that Mr Drca had complained of to Dr Tomasevic.
Last, by saying that there was not “sufficient evidence” for him to be “comfortably satisfied” that Mr Drca’s gastrointestinal condition arose as a result of pain relieving medication for his accepted back injury, the Arbitrator applied the wrong standard of proof. For an applicant to succeed in a claim for compensation, he or she only has to satisfy the Commission on the balance of probabilities of the facts that establish the claim.
A mere mechanical comparison of probabilities, independent of a reasonable satisfaction, will not justify a finding of fact. The fact finder must feel “an actual persuasion of the occurrence or existence of the fact in issue before it can be found” (Redlich JA, Harper JA and Curtain AJA in NOM v DPP [2012] VSCA 198 at [124]; see also Dixon J in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 and Dixon, Evatt and McTiernan JJ in Helton v Allen (1940) 63 CLR 691 at 712).
Once the feeling of actual persuasion has been obtained, “it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’” (McDougall J (McColl and Bell JJA agreeing) at [51] in Nguyen v Cosmopolitan Homes [2008] NSWCA 246).
The standard of being “comfortably satisfied” is a higher standard than that of actual persuasion on the balance of probabilities. While the balance of probabilities standard will be satisfied if an Arbitrator is “comfortably satisfied” that a fact exists, that is not a necessary prerequisite for satisfaction of the civil standard and the Arbitrator erred in applying that standard. The evidence only had to establish that it was more probable than not that the gastrointestinal condition resulted from the medication taken for Mr Drca’s accepted back injury.
In light of the above errors, this part of Mr Drca’s claim must be re-determined. However, in light of Mr Drca’s application to rely on additional evidence on appeal, it is appropriate that, as a matter of fairness, this issue be re-determined by a different Arbitrator. This will enable both sides to tender such evidence as they consider appropriate.
CONCLUSION
For the reasons explained above, the appeal against the finding that Mr Drca did not injure his neck is unsuccessful. However, the challenge to the finding that his gastrointestinal symptoms did not result from his accepted back injury is successful and must be re-determined before a different Arbitrator.
DECISION
Paragraph 4 of the Certificate of Determination of 21 October 2014 is revoked and the question of whether the appellant worker’s condition in his upper and lower digestive tract has resulted from the injury to his lumbar spine on 5 July 2012 is to be re-determined by a different Arbitrator.
Paragraphs 1, 2, 3, 5 and 6 of the Certificate of Determination of 21 October 2014 are confirmed.
COSTS
No order as to costs.
Bill Roche
Deputy President
13 February 2015
I, JACQUELINE HAGGER, 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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