Duc Dien Tran v Salmat Document Management Solutions Pty Ltd
[2008] NSWWCCPD 147
•23 December 2008
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Duc Dien Tran v Salmat Document Management Solutions Pty Ltd (wrongly sued as Salmat Pty Ltd) [2008] NSWWCCPD 147 | ||||
| APPELLANT: | Duc Dien Tran | ||||
| RESPONDENT: | Salmat Document Management Solutions Pty Ltd | ||||
| INSURER: | CGU Workers Compensation (NSW) Ltd | ||||
| FILE NUMBER: | WCC5999-08 | ||||
| DATE OF ARBITRATOR’S DECISION: | 1 October 2008 | ||||
| DATE OF APPEAL DECISION: | 23 December 2008 | ||||
| SUBJECT MATTER OF DECISION: | Injury; whether employment was a substantial contributing factor to the injury; section 9A of the Workers Compensation Act 1987; application of Hevi Lift (PNG) Limited v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 and Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705. | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | MN Compensation Lawyers | |||
| Respondent: | Turkslegal | ||||
| ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 1 October 2008 is revoked and the matter is remitted to another Arbitrator for determination of the deemed date of injury and calculation of the Appellant Worker’s entitlement to compensation. | ||||
| The Respondent Employer is to pay the Appellant Worker’s costs of the appeal and of the first arbitration. | |||||
INTRODUCTION
This appeal concerns whether the appellant, Duc Dien Tran, sustained an injury to his back arising out of or in the course of his employment with the respondent, Salmat Document Management Solutions Pty Ltd (‘Salmat’), wrongly sued as Salmat Pty Ltd, as a result of the nature and conditions of his employment between 1999 and February 2008 and, if so, whether his employment was a substantial contributing factor to that injury.
The resolution of this issue largely, but not exclusively, turns on whether the medical experts relied on by Mr Tran identified the factual basis on which they formed their opinions, or whether their opinions were “bare conclusions” of little or no weight as discussed in Hevi Lift (PNG) Limited v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 (‘Hevi Lift’) and Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’).
BACKGROUND
Mr Tran was born in Vietnam in 1959 and came to Australia in 1979. He started work as a storeman with Salmat in February 1999, but after six months started operating two Xerox laser printing machines. In general terms, his duties required him to bend, lift boxes of paper weighing about 12 kilograms, and stand for prolonged periods.
In about January 2007, he noticed back pain whilst at work as he was bending, lifting and carrying. He did not report his pain and remained at work performing his normal duties until approximately November 2007. He eventually reported his back pain and was placed on light duties on or about 6 December 2007 which he continued until they were withdrawn in or about February 2008. Salmat ultimately terminated Mr Tran’s employment on 11 July 2008.
Mr Tran’s claim was denied by Salmat’s workers compensation insurer, CGU Workers Compensation (NSW) Limited (‘CGU’), in a section 74 notice dated 11 February 2008. It disputed liability on the following grounds:
(a)Mr Tran’s injury did not arise out of or in the course of his employment;
(b)Mr Tran’s employment was not a substantial contributing factor to his injury; and
(c)Mr Tran suffered no incapacity and/or need for treatment.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 4 August 2008, Mr Tran claimed weekly compensation from 11 February 2008 to date and continuing together with medical expenses as a result of an injury to his back and right leg allegedly caused by “repetitive bending, lifting, pulling and pushing stock and bundles of papers” between 1999 and 27 November 2007.
The matter was listed for a teleconference before a Commission arbitrator on 8 September 2008 when it was determined that it was a suitable matter to be determined on the papers without holding an arbitration hearing. The parties did not oppose that course being adopted and made written submissions in support of their respective positions. In a decision delivered on 1 October 2008, the Arbitrator made an award in favour of Salmat on the basis that she was not satisfied that Mr Tran had discharged the onus on him to demonstrate that his back and right leg symptoms were causally related to his employment.
By an appeal filed on 13 October 2008, Mr Tran seeks leave to appeal the Arbitrator’s decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
There is no dispute that the monetary thresholds in section 352(2) of the 1998 Act 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 1 October 2008, records the Arbitrator’s orders as follows:
“1.There is to be an award for the Respondent in relation to all claims.”
FRESH EVIDENCE
In their submissions, both parties have referred to the evidence of Dr Liew, rheumatologist, who saw Mr Tran on referral from Dr Ly and reported to “Glen” at CGU on 7 January 2008. Dr Liew’s report was not in evidence before the Arbitrator, although it was served by CGU with the section 74 notice on 11 February 2008.
As it was uncertain whether Mr Tran sought to rely on the report on appeal, I held a teleconference on 22 December 2008 when Ms Nguyen represented Mr Tran and Ms Bedkober represented Salmat. Ms Nguyen applied to have the report admitted as additional evidence on appeal pointing out that it had been attached to the section 74 notice and both parties were in possession of it. Ms Bedkober opposed the admission of the report and submitted that the Commission operates a front loaded system, the report should have been attached to the Application and it was now too late.
I accept that the failure to attach the report to the Application was an oversight and, had the arbitration proceeded as an oral hearing, that oversight would most likely have been corrected. The Commission has a duty to act according to “equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (section 354(3) of the 1998 Act). Ms Bedkober has pointed to no prejudice Salmat will suffer if the report is admitted into evidence on appeal. Dr Ly referred Mr Tran to Dr Liew for treatment of his condition and Dr Liew’s opinion is therefore material and probative. The report has been in CGU’s possession since early 2008 and CGU served it on Mr Tran as an attachment to the section 74 notice on 11 February 2008. Given that the evidence is material and probative and, given the “statutory obligations and powers imposed and conferred on the” Commission (Haider v JP Morgan Holdings Aust t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158 at [44]), it is in the interests of justice that the report be admitted on appeal so that the matter can be determined on its substantial merits and that is the course I propose to adopt.
THE EVIDENCE
Lay Evidence
Mr Tran’s evidence is set out in his statements of 22 July 2008, taken by his solicitor, and of 19 December 2007, taken by CGU’s investigator, Verifact. After coming to Australia in 1979, Mr Tran obtained a certificate in electronics and worked casually assembling electronic components. In 1990 he graduated from Sydney University with a Bachelor of Science, specialising in computers.
From 1990 until 1993 he worked as a computer technician and then as a mobile phone technician. Between 1993 and 1999 he was unable to obtain permanent employment, but did casual dishwashing jobs in restaurants.
In February 1999, he started work for Salmat as a casual storeman and, some months later, started operating two Xerox laser printing machines. His job required him to run both machines simultaneously and to keep them in continuous operation as much as possible. He had to obtain paper from the paper storage area. To do that he had to “bend and reach under low shelves to pull-out boxes of paper”, which put a strain on his back (Mr Tran’s statement 22 July 2008, paragraph 14). The boxes weighed approximately 12 kilograms. He found it difficult to estimate how many boxes he had to lift during an average shift. When he did “big print runs” he would have to “bend, lift and carry two boxes at a time, one in each hand”. After loading paper into the printers, he would start the print run and monitor the machines, fixing any problems –such as paper jams – as they occurred. To do that, he had to bend “in an awkward position for various periods of time”. As the printing progressed, he would remove the printed sheets from the printer tray and carry them to a table where they were checked and stacked onto a trolley. He claims that he often had to take bundles of printed paper weighing up to about 10 to 12 kilograms and carried them to the table for checking.
Mr Tran says that he had to “work fast to keep up with production quotas”. Throughout his shift he was “frequently bending, lifting and carrying paper”, and standing and walking.
In about 2005, a new Enterprise Bargaining Agreement (‘EBA’) was reached and he changed from working five standard shifts per week to 12-hour shifts on Thursday, Friday and Saturday from 6am to 6pm. Under the new EBA, the production quotas on the Xerox machines were increased and he had to “work even faster and do more bending, lifting and carrying of paper”.
In about January 2007, he noticed back pain while he was bending, lifting and carrying at work. He did not report his pain to anybody at work and says that he did not know he had to do so.
On 25 January 2007, Mr Tran attended on his general practitioner, Dr Nguyen, about his back pain, which was, at times, travelling into his legs. He said that his pain continued, especially when he was very busy and he was doing a lot of bending, lifting and carrying. Mr Tran also saw Dr Nguyen complaining of painful and swollen legs on 2 March 2007 and was given one day off work on a sick leave certificate.
He again saw Dr Nguyen because of his back on 16 June 2007 and was given a sick leave certificate for a “sore back” for that day. Mr Tran returned to his normal duties but had another day off work, certified by Dr Nguyen, because of back pain on 21 June 2007. He continued his normal duties until he saw Dr Nguyen again on 22 November 2007 and was given one day off work on a sick leave certificate because of a “sore back and legs”.
Throughout 2007, Mr Tran continued his normal duties and would rest over the four-day break between his working days and his back would improve with that rest. In October/November 2007, the pain in his right leg became worse and he had to sit down more often throughout his shift. As a result, his supervisor told him he was “not working fast enough”. Mr Tran does not recall his exact response, but believes he said he had leg pain, which was making him sit down. He remained working on the Xerox machines and his back and leg pain became very bad. He saw Dr Nguyen on 22 November 2007, when the doctor asked him about his job. Mr Tran said that it involved lifting and standing and the doctor allegedly replied that he did not want to get involved in a worker’s compensation case. Dr Nguyen referred Mr Tran for a lumbar CT scan on 27 November 2007, which revealed lumbar spondylosis with bulging annuluses, bulging of the L4/5 disc and a “central protrusion of the L5/S1 disc”. The nerve roots were not displaced, “but there could be some impingement”.
On 23 November 2007, Mr Blewitt, Mr Tran’s supervisor, told him that he was not managing his time correctly and that he needed to print large and medium jobs on one job and leave the other machine idle. He also told him that he was spending unnecessary time walking around the floor and that other operators were able to get through the work considerably faster. As a result, Mr Tran was asked to consider how to manage his time and get jobs out earlier.
Later that day Mr Tran asked Mr Blewitt if he could be moved to the “Varios” because operators on those printers spent a lot of time sitting down. Mr Blewitt responded that that would be an option once he “made a continued improvement in his present duties”.
The first time Mr Tran complained to anybody at work about his back was on 29 November 2007, when he took a copy of Dr Nguyen’s certificate and the CT scan to Ms Penny Menouhos, Salmat’s occupational health and safety officer and the return-to-work co-ordinator.
When Mr Tran gave Ms Menouhos his CT scan and the certificate from Dr Nguyen, he said “the production manager sent me up here to see you”. He alleges that she replied, “this is not serious, one of my relatives had the same problem and they got better”. She then allegedly said that she did not want Mr Tran to see Dr Nguyen, but wanted him to see Dr Lieng and she made an appointment for him to see that doctor.
Dr Lieng examined Mr Tran on or about 29 November 2007. Mr Tran returned to work on 1 December 2007, but worked on the handline, which he says was lighter than his normal duties. Nevertheless, the work he did on 1 December 2007 further aggravated his back and leg pain. He ceased work before the completion of his shift and attended on a different general practitioner, Dr James Ly. He did not return to Dr Nguyen because the doctor had told him he did not wish to get involved in a workers compensation case.
Dr Ly provided the first WorkCover medical certificate on 1 December 2007 and certified Mr Tran unfit on that day, but fit for suitable duties from 6 December 2007 until 20 December 2007. The suitable duties recommended by Dr Ly were for 6 hours per day three days per week with a lifting limit of five kilograms, a ten minute break every hour, Mr Tran was to work at his own pace, sitting or standing at will, with minimal lifting of boxes and avoiding frequent repetitive bending. Dr Ly’s certificate of 1 December 2007 sets out a detailed history of Mr Tran’s duties and is more in a nature of a report than a certificate. The significance of this certificate will be discussed further under “Medical Evidence” below.
On 6 December 2007, Mr Tran met with Ms Menouhos and several of Salmat’s managers and he was placed on light duties placing pieces of paper in envelopes for six hours per day five days per week.
On referral from Dr Ly, Mr Tran attended on Dr Liew on 7 January 2008.
On or about 22 February 2008, Mr Tran attended a meeting at Salmat when he was informed that he would no longer be provided with light work and he would not be paid workers compensation. He was told to go home and to come back when he could do his normal duties. Since stopping work, Mr Tran has not returned to employment and has continued to suffer constant pain in his back, which radiates to both legs. Mr Tran also complains of numbness and pins and needles in his right leg. He says that bending, lifting, carrying and twisting aggravate his back pain, as does sitting for more than 30 minutes, standing for more than 20 minutes or walking for more than 15 minutes. He says that his pain also affects his concentration and restricts his ability to drive.
On 19 February 2008, Mr Tran attended on Dr Letran, injury management consultant, for treatment. Dr Letran certified him fit for his pre-injury hours with a lifting restriction of ten kilograms (floor to chest) and with a restriction on avoiding repetitive bending and twisting of the back. On 26 March 2008, Mr Tran handed a copy of a certificate from Dr Letran to Mr Heintz, Salmat’s operations manager. Mr Heintz allegedly replied “you can’t come back to work, I told you to bring a clearance certificate”. Mr Tran does not believe he would be able to perform his pre-injury duties with Salmat and that he could not work as a computer technician because that job requires prolonged sitting, good concentration and the ability to carry equipment weighing up to 20 kilograms.
On 3 July 2008, Mr Tran again delivered to Salmat a certificate for fitness for suitable duties from Dr Letran. For this occasion he gave the certificate to Karen Graham who allegedly said to him “can you get a clearance certificate to come back to work”. On 15 July 2008, Mr Tran rang and spoke to Karen Graham and said, “I can’t get a clearance certificate”. On 17 July 2008, Mr Tran received a letter from Salmat, dated 11 July 2008, terminating his employment.
Salmat relies on several lay witness statements obtained by the investigators Verifact on 19 December 2007.
Ms Menouhos provided a statement in which she made the following points:
(a)Mr Tran was “evasive and vague” when questioned about how and when he injured his back;
(b)Salmat’s first notification of a claim was when Mr Tran produced a WorkCover certificate from Dr Ly on 1 December 2007;
(c)Mr Tran first mentioned his back and leg pain to her on 29 November 2007, when he produced a non-WorkCover certificate from Dr Nguyen indicating a back and leg condition. Upon receiving this certificate, Ms Menouhos said to Mr Tran, “what is wrong with your back?” He said, “I got some back problem I need some time off and only work six hours a day”. She replied, “your doctor only gave you a normal certificate not a WorkCover one”. She then telephoned Dr Nguyen in Mr Tran’s presence. The doctor allegedly explained “that it wasn’t from work”. Ms Menouhos then arranged for Mr Tran to visit Salmat’s “preferred doctor”, Dr Lieng, which he did;
(d)Dr Lieng declined to provide a WorkCover certificate, but provided an ordinary certificate for Mr Tran to have two days off work;
(e)in respect of the meeting on 6 December 2007, Ms Menouhos said that Mr Tran stated that he was not sure of the day of the week the injury occurred or to whom he reported it. He then allegedly said that it had not been reported, and
(f)after the meeting on 6 December 2007, Salmat provided Mr Tran with light duties consistent with his WorkCover certificate stating that he should avoid bending.
Salmat also relies on a statement from Mr Tran’s supervisor, Mr Blewitt, who states:
(a)he spoke to Mr Tran in mid November 2007 regarding his work performance and his low production and below standard time management;
(b)at about 11am on 23 November 2007, Mr Blewitt told Mr Tran that he was not managing his time correctly and that he was spending unnecessary time walking around the floor. Other operators were able to get through the work considerably faster than Mr Tran and Mr Tran was to consider how to manage his time and get jobs out earlier;
(c)at about 1.30pm on 23 November 2007, Mr Tran asked Mr Blewitt to transfer him to the “Varios” machine as the operators on those printers spent a lot of time sitting down. Mr Blewitt replied that that would be an option once he made a “continued improvement in his present duties”;
(d)on 30 November 2007, Mr Blewitt telephoned Mr Tran to confirm his attendance the next day, Saturday, 1 December 2007. He was aware that Mr Tran had been off work with a sore back, but there was nothing to indicate to Mr Blewitt that it was work related;
(e)Mr Tran attended work on 1 December 2007 and asked Mr Blewitt if he could leave early because of his sore back. Mr Blewitt asked if he could run small jobs only on one machine. Mr Tran left work at 3pm, instead of his normal time of 6pm. Mr Blewitt is aware that some time after 1 December 2007, Mr Tran made a claim for workers compensation and was subsequently moved to a different location in the factory under a different supervisor;
(f)while Mr Tran was slow at this work, he did his duties without complaint and without exhibiting any sign of a back injury;
(g)there was no heavy lifting in Mr Tran’s duties. He predominantly did “small to median jobs” [sic, medium]. His jobs varied but most were less than 1,000 sheets per run and there were 2,000 sheets to a box. Mr Blewitt would be surprised if Mr Tran had to handle “more than six full boxes during his shift”. Those boxes weighed approximately 11 to 11.5 kilograms each, and
(h)Mr Blewitt confirmed that bending “occurs in relation to taking stock from the trolley” and that the bottom of the trolley was about knee height. Mr Tran also bent to open cupboards in the printers to free jams from time to time and to load the trays. These tasks were periodic rather than constant. Mr Blewitt attended the meeting on 6 December 2007 and he recalls Mr Heintz asking Mr Tran “is your injury work related?” Mr Tran replied “yes it is”. When asked about when the injury happened, Mr Tran said “it was hurting on 1 January 2007”. Though Mr Tran mentioned how his injury happened, Mr Blewitt could not recall the detail. When questioned as to why he did not report his injury at the time, Mr Tran advised that he did not consider it to be an issue.
Mr Douglas Tyree, Salmat’s laser production manager, also provided a statement on 19 December 2007. His evidence may be summarised as follows:
(a)Mr Tran operated two Xerox printers during three 12-hour shifts per week with two breaks during his shift, one for 15 minutes and the other for 30 minutes. One printer was used for “short line productions” and the other for medium to longer lines. One machine would generally run while the other was being set up, or the printed material was being removed and delivered to the mail room;
(b)stock was obtained from shelves located about 20 metres from the printers, though some stock was obtained from a “back store area”. A trolley was used to transport stock to the printer;
(c)after Mr Tran completed a run, he removed the printed material from a tray and placed it on a table. It was then checked and straightened before being placed on the trolley for the delivery to the mailroom;
(d)when collecting and stacking stock on the trolley, the maximum reach is about to chest height and the lowest point is about knee height. Limited bending is also required when opening cupboards on the printer to remove paper jams;
(e)the heaviest box of paper weighs about 11.65 kilograms, but Mr Tran usually only required small amounts and would go to open boxes. In any event, he could remove handfuls rather than handle the full box when loading it onto the table. In the alternative, he could take quantities straight from boxes on the trolleys and not use the table to transfer them;
(f)he was not aware that Mr Tran experienced any difficulty with his work prior to his recent alleged back injury. Mr Tran made no mention of any injury, nor exhibited any sign of injury, prior to his complaint in December 2007;
(g)Mr Tyree recalled being at Salmat’s premises in the company of Mr Heintz when Mr Tran approached with some medical documents. Mr Heintz asked if it was a work place injury and Mr Tran said something to indicate that it was not. Mr Tran also said something about wanting reduced hours, but Mr Tyree had difficulty relating the actual words used during the conversation, however, he recalled “that Mr Tran advised that his back condition was not work related”, and
(h)Mr Tyree was also present during the meeting on 6 December 2007 when Mr Tran was asked about his injury. He confirmed that Mr Tran “mentioned some date in January when he first felt pain in his back”, but there was nothing direct regarding how that pain came about.
Mr Heintz also provided a statement on 19 December 2007. His evidence is as follows:
(a)on 29 November 2007, Mr Tran approached Mr Tyree and Mr Heintz with what appeared to be an x-ray and he said he had a sore back. Mr Heintz said “is this an injury you sustained at work?” To which Mr Tran replied “no”. He then added that he needed to take a break from his duties because of his back. Mr Heintz again said, “Is this an injury you sustained at work?” Mr Tran again replied, “no”;
(b)Mr Heintz also attended the meeting on 6 December 2007 at which he asked Mr Tran to confirm that he injured himself on 1 January 2007, as alluded to in his claim. He replied “yes I did”. Mr Heintz then asked him how it occurred and he said “I don’t know how. I am not sure when it happened. I had a pain in my leg in January”. When he questioned Mr Tran about his doctor Mr Tran said, “Dr Nguyen has been my doctor for 20 years”. He added that he had been experiencing pain at work and consulted Dr Ly on 1 December 2007. When questioned further about the date of injury, Mr Tran said “not on 1 January”, and
(c)on 5 December 2007, Mr Heintz watched Mr Tran bend and stoop in the locker room exhibiting “no problems”. However, when Mr Heintz made eye contact with him, Mr Tran commenced to limp. When Mr Heintz asked how his back was, Mr Tran said it was sore.
Medical Evidence
Mr Tran’s medical case consists of medical certificates from Dr Ly and Dr Letran; reports from Dr Ellis, Dr Liew and Dr Nguyen, and a CT scan of 27 November 2007 and MRI scan of 23 April 2008. Salmat relies on two reports from Dr Powell, orthopaedic surgeon.
Dr Ly’s first document, dated 1 December 2007, is set out on a WorkCover medical certificate, but it includes a detailed history that makes it more in the nature of a report than a certificate. Dr Ly recorded that Mr Tran worked twelve hour shifts three days each week and that his duties required him to operate two laser printing machines, moving back and forth between them. He would start the day by checking orders for the day, and then walk to the storeroom about 100 metres away to fetch boxes of paper weighing about 12 kilograms. He would lift and transfer about five to ten boxes onto a trolley and push the trolley to the printing machines. He would then transfer each box onto a working table next to the machines, feed paper from the boxes into the machine, set up the machine and start printing. After the machine completed a print run he would transfer the bundles of paper to the trolley and push the trolley to the next section, about 100 to 150 metres away. Each day Mr Tran would push about five to ten trolleys on the round trip just described.
Mr Tran told Dr Ly that in early January 2007 he started to develop a painful lower back with pain radiating down to the right knee level together with an intermittent sensation of numbness radiating down from the lower back to the right foot level. Mr Tran stayed at work though his “lower back pain-numbness also deteriorated, progressively turning into a more severe pain of [a] constant nature”. Mr Tran added that he often “developed exacerbation of pain and numbness at work from the repetitive lifting, prolonged standing – walking”. Dr Ly declared Mr Tran unfit for work on 1 December 2007 (after he had already completed most of his shift that day), but fit for suitable duties from 6 December 2007 (see paragraph [33] above).
Dr Ly’s diagnosis was of a “work related back injury – severe lower back pain with right sciatica – aggravated lumbar spondylosis – disc prolapse @ L4/5 & L5S1.” He ticked the box affirming that employment was a substantial contributing factor to the injury.
Dr Liew saw Mr Tran on 7 January 2008. He recorded that Mr Tran sustained an injury to his back during the course of his employment as a laser printing machine operator at Salmat in January 2007. Mr Tran complained of pain across his low lumbar segment with a “radiant pain from the right gluteal region down the posterolateral aspect of the right lower limb to the hindfoot”. He indicated that prolonged sitting or driving and prolonged standing, “in particular operating the printing machines at work, aggravate his condition”. Mr Tran “related the onset of his complaint to the nature of his work, in particular with lifting and transferring 12 kg boxes of paper from the storeroom to the machine for printing and the printed paper to another section.” He denied any history of any prior back problem.
Dr Liew’s examination revealed some “asymmetry to the lumbar spine” with movements limited by a complaint of discomfort. Right straight leg raising was limited to 45 degrees. Dr Liew noted the CT scan revealed bulging at L4/5 and a central disc protrusion at the L5/S1 level. He concluded that Mr Tran’s condition was consistent with a lumbar disc lesion and right sciatica, and that the nature of Mr Tran’s work was responsible for his complaints and disabilities. In view of the unresolving nature of Mr Tran’s complaints, Mr Liew referred him for an MRI scan for “a better definition of the pathological process responsible for his symptom complex”.
Mr Tran came under the care of a new general practitioner, Dr Letran, in February 2008. Dr Letran has provided several WorkCover certificates declaring Mr Tran to be fit for suitable duties, but has not provided a report.
The MRI scan on 23 April 2008 revealed the following:
“There is disc desiccation at the L5/S1 level with preservation of intervertebral disc space height and a broadbased small to moderate profile central to right posterolateral disc protrusion. It encroaches on both S1 nerve roots at their point of exit from the thecal sac.”
Dr Nguyen provided a short handwritten report on 23 May 2008 in which he said he could not recall Ms Menouhos’ phone call. However, if she did call he would not have told her “his pain was not from work”, because he did not know the exact cause of Mr Tran’s pain and disc protrusion.
For medico-legal purposes, Mr Tran saw Dr Ellis, a Fellow of the Royal College of Surgeons, on 24 June 2008. Dr Ellis took a history that Mr Tran’s work as laser operator was physically demanding and fast, requiring him to operate two Xerox laser printing machines.
His duties required him to go to the paper storage area to collect paper stacked in boxes weighing up to 12 kilograms. During “big print runs” Mr Tran would have to “bend, lift and carry two boxes at a time, one in each hand loading the trolleys, pushing the trolleys to the machines unloading it to the machines”. To service the machines, Mr Tran was required to manoeuvre in “awkward positions to remove jammed paper”. On completion of a printing run he would stack paper onto the trolley, carry bundles of printed paper to the table for checking and then to the mail room. The “bundles of paper would weigh up to 15kg, the work involved constant standing and walking and lifting.”
Dr Ellis also recorded that the new 2005 Enterprise Bargaining Agreement meant that the production quotas for the Xerox machines increased and his work was more physical and he had to work faster. While loading and unloading the machines in January 2007, Mr Tran “noticed the onset of back pain aggravated by his work, bending, lifting”. He saw his local medical officer, Dr Nguyen, on 25 January 2007 concerning his back pain, which radiated to his legs. His working efficiency declined and he attempted to work from the sitting position. He asked to be transferred to the Varios machines where the work was easier, but his supervisor said that he would consider transferring him once his efficiency improved.
Under “Continuing Disability” Dr Ellis recorded that Mr Tran’s lower back pain persists and is aggravated by bending, lifting, prolonged standing, sitting and walking. The pain spreads to the back of both legs to his heels, particularly affecting the right leg. He also complained of numbness and paraesthesia in the soles of his feet.
On examination, Dr Ellis noted that Mr Tran stooped forwards due to muscle spasm in the erector spinae muscle mass and that his movements were markedly restricted. On forward flexion, Mr Tran could reach the upper thirds of his calves. Other movements, rotation, lateral flexion, and extension, were reduced to a few degrees only. Mr Tran could not sit throughout the interview and had to stand for pain relief. Straight leg raising was 20 degrees on the right and 40 degrees on the left. There was impairment to light tough sensibility in the right calf and power was diminished in the dorsi flexors and plantar flexors of the right ankle.
After referring to the CT scan of 27 November 2007 and the MRI scan of 23 April 2008, Dr Ellis concluded:
“As a result of the work related strains in the heavy work involved while employed by Salmat Document Management Solutions, Mr Tran has developed musculo-ligamentous contusion, aggravation of degenerative change in his back. Consequent on the back injury there are secondary effects in both lower limbs particularly affecting the right, referred pain and neurological deficit. The radiological findings are convincing with internal disc disruption or desiccation affecting the lower 2 lumbar discs and a significant disc prolapse at L5/S1 level predominantly right sided, consistent with the neurological deficit, referred pain he has in his right leg.
The onset of symptoms in January 2007 corresponded with the increase in workload from 2006 onwards with an increase in production quotas for the 2 Xerox machines he was operating and the change in work practices, the enterprise bargaining agreement with a change in shifts to 12 hour shifts.”
Dr Ellis considered that there was “clear evidence of radiculopathy affecting the right leg consequent on the back injury today consistent with the radiological findings” and that Mr Tran will require surgery in the form a laminectomy and discectomy. He also requires a rehabilitation assessment and assistance in order to find alternative lighter work, preferably in the electronics industry. He assessed Mr Tran to be permanently unfit for physically demanding work requiring bending and lifting, or his pre-injury work with Salmat.
Dr Powell examined Mr Tran on behalf of CGU on 4 January 2008 and reported to the insurer on 8 January 2008. Mr Tran indicated that there was no “specific precipitating incident, rather the gradual accumulation of symptoms over a period of several months.” In his capacity as a laser operator Mr Tran transferred boxes of blank paper weighing an estimated 12 kilograms from the storage position via a trolley to his machine. He then loaded the machine. Once printed, the paper would be transferred back into the boxes and moved via a trolley to the next section about 100 metres away. He would move approximately 10 boxes at a time in that fashion.
Dr Powell recorded that Mr Tran described developing a dull ache in the right side of his lower back radiating into the right buttock and down the posterior aspect of his right leg to the heel together with pins and needles. He attended his local doctors Dr Nguyen and Ly, and commenced acupuncture, which he believes helped. He also attended physiotherapy and performed a home-based exercise program three times per week. Mr Tran was placed on light duties, which he continued with “slow steady improvement”.
Mr Tran’s symptoms on 4 January 2008 included discomfort in the right side of his lower back and right leg pain which was constant with intermittent pins and needles. Mr Tran’s treatment included anti-inflammatory medication, acupuncture, physiotherapy and home exercises.
On examination, Dr Powell found Mr Tran to be a compliant and co-operative patient with no suggestion of over reaction or exaggeration. Mr Tran had a “mildly and antalgic gait with a shortened stance phase on the right side”. There was mild tenderness to palpation over the right paraspinal musculature between L2 and the sacrum, but no clinically identifiable muscle spasm. Forward flexion was to the level of the mid thigh and rotation was only one third of the normal range. Straight leg raising was 50 degrees bilaterally, though when Mr Tran sat over the edge of the examination couch, both knees could be fully extended without difficulty. Neurological examination of the lower limbs revealed normal tone. There was reduced sensation to light touch to below the knee in the right leg in a global fashion. There was no muscle wasting and deep tendon reflexes were equal and symmetrical.
Dr Powell noted the findings in the CT scan of 27 November 2007, which he referred to as showing “lumbar spondylosis as well as a small central disc bulge at L5/S1 without evidence of neural compromise.”
Under “Diagnosis”, Dr Powell stated that Mr Tran was suffering from “mild changes of lumbar spondylosis without evidence of a lumbar radiculopathy.” The examination was characterised by a marked global restriction in the range of motion and atypical right leg signs and symptoms, which were not consistent with the imaging studies. He felt that Mr Tran’s symptoms were a reflection of the natural history of mild lumbar spondylosis and he did not believe that there was sufficient evidence to conclude that his employment with Salmat represented a “substantial contributing factor in the development of his condition.” He did not believe Mr Tran’s level of symptoms was consistent with the history provided by his employment or to be related to the nature and the conditions of his work. He did not think Mr Tran was fit to return to his full pre-injury duties and he recommended suitable duties with a lifting restriction of 10 kilograms and the avoidance of repetitive bending, lifting and twisting manoeuvres. Mr Tran should also avoid prolonged sitting or standing and have the opportunity for regular rest breaks. He recommended that Mr Tran continue with physiotherapy and a stretching program which he could perform during rest breaks at work.
On 30 January 2008, Dr Powell prepared a supplementary report in which he commented on the factual investigation prepared by Verifact on 28 December 2007. He noted that the description of Mr Tran’s work duties in that report were in line with the information Mr Tran provided to him and did not make him alter his opinion.
THE ARBITRATOR’S REASONS
In a carefully prepared Statement of Reasons for Decision (‘Reasons’), the Arbitrator reviewed the evidence and concluded:
(a)there is no dispute that Mr Tran suffers a pathological condition in his lumbar spine, which causes him pain. The condition “has arisen from a degenerative spinal disease” (Reasons, paragraph 23);
(b)Mr Tran did not initially associate the pain with his work activities and nor did his treating doctor, though Mr Tran now says that he first noticed the pain when he was carrying out his work duties (Reasons, paragraph 23);
(c)the “condition did manifest itself at work, although it does not seem that it can have been only or first at work if Mr Tran did not initially associate it with his work activities” (Reasons, paragraph 23);
(d)the pain made it difficult for Mr Tran to carry out his work activities from time to time from January 2007 to the extent that he had absences from work because of it. The difficulty he had with time allocation may also have arisen as a result of his back condition;
(e)the injury is said to have arisen gradually over the course of at least a year. Mr Tran’s work was physical and required some lifting and bending. However, the work was not so heavy nor the bending so repetitive “for it to be self evident, without anything more, that there is a causal relationship of the required strength between his work activities and his back condition – or the aggravation, acceleration, exacerbation or deterioration of it” (Reasons, paragraph 25);
(f)on the authority of Hevi Lift, the medical evidence in support of the claim must be an expert opinion the basis for which is explained by the witness expressing it. None of the medical evidence met that standard (Reasons, paragraph 26);
(g)Mr Tran’s description of his work was deficient in that he was not able to estimate the real frequency of his bending, lifting and carrying activities. In any case, none of the medical witnesses explained the mechanism by which the activities were causal of Mr Tran’s condition over and above the general wear and tear on the human body caused over time by the activities of every day life (Reasons, paragraph 26);
(h)whilst Dr Ellis related the “work related strains” of the “heavy” work to the general effects of the 2005 Enterprise Bargaining Agreement, that Agreement had been in operation for more than a year before the onset of symptoms. It may well be that the longer shifts did affect Mr Tran’s degenerative back disease but Dr Ellis did not explain in medical terms what those could have been and why (Reasons, paragraph 27);
(i)Dr Liew and Dr Ly made bare statements of causation that have not advanced Mr Tran’s case. Therefore, there is no medical evidence which meets the Hevi Lift standard on which the Arbitrator felt she could rely to conclude that Mr Tran’s work activities were “a substantial contributing factor” to the injury he claimed; and
(j)the Arbitrator was not satisfied that Mr Tran had discharged the onus of proof on him to demonstrate that the symptoms he suffers in relation to his back and right leg were more likely than not causally related to his employment with Salmat and he cannot succeed with this claim.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)misunderstanding the evidence in relation to the nature and conditions of Mr Tran’s employment;
(b)making no proper findings in relation to the nature and conditions of Mr Tran’s employment;
(c)misunderstanding of the medical evidence;
(d)failing to consider all of the medical evidence;
(e)finding that Mr Tran’s low back pain arose only out of a degenerative spinal disease;
(f)wrongly applying the law in evaluating the medical evidence, and
(g)misunderstanding the decision of the Court of Appeal in Hevi Lift.
SUBMISSIONS
Mr Tran submits:
(a)in both his statement of 22 July 2008 and his statement to Verifact of 19 December 2007, he said that he first noticed pain while working for Salmat. He added that he continued to get pain in his back at work, especially when he was very busy and doing a lot of bending, lifting and carrying. When working in October/November 2007, the pain in his right leg became worse and he had to sit down to relieve that pain resulting in his supervisor speaking to him for not working fast enough;
(b)the Arbitrator raised no credit issue and noted that the Verifact report gave a description of the employment duties broadly similar to that given by Mr Tran, though there were some significant differences. The Arbitrator failed to identify the significant differences, or to provide any reasons as to why they were significant;
(c)his evidence as to the nature and the conditions of his employment was not contradicted by the statements attached to the Verifact report and, contrary to the Arbitrator’s finding, there were “no significant differences”;
(d)Salmat’s witnesses conceded that the duties did require some bending and lifting, but did not identify how frequently those activities were undertaken;
(e)none of the statements relied upon by Salmat contradicted in any significant way Mr Tran’s evidence as to the nature and conditions of his employment. The Arbitrator should therefore have found that the nature and conditions of Mr Tran’s employment work as he described them and that, at the least, aspects of his work were heavy;
(f)Dr Powell apparently did not see that there could have been some impingement of the nerve roots caused by the protrusion of the L5/S1 disc and apparently gave no consideration to the opinion of the radiologist in the CT scan report of 27 November 2007. Dr Powell did not have the benefit of examining the MRI scan of 23 April 2008, which undermined his opinions as to the cause of Mr Tran’s symptoms. Dr Liew concluded that Mr Tran’s condition was consistent with a lumbar disc lesion and right sciatica, and that the nature of his work was responsible for the development of his complaints and disabilities;
(g)the Arbitrator misunderstood the medical evidence and failed to consider all of the medical evidence in finding that Mr Tran’s lower back pain arose only out of degenerative spinal disease;
(h)reliance is placed on the decision of Heron CJ in EMI (Australia) Limited v Bes [1970] 2 NSWR 238. If medical science is prepared to say that there is a possible connection between the events and the injury (or, in that case, death) then a judge, after examining the lay evidence, may decide that it is probable;
(i)reliance is placed on the decision of Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505) (‘Paric’);
(j)the Arbitrator wrongly concluded that none of the medical witnesses explained the mechanism by which the work activities caused Mr Tran’s condition over and above the general wear and tear on the human body caused over time by the activities of every day life. Dr Liew stated that Mr Tran’s condition was consistent with a lumbar disc lesion and right sciatica and that the nature of the work was responsible for his complaints and disabilities. His diagnosis was confirmed by the MRI scan of 23 April 2008. Likewise, Dr Ellis provided a proper medical opinion, and
(k)it is for the tribunal of fact to decide whether work is a substantial contributing factor to the injury (Mercer v ANZ Banking Group Limited [2007] NSWCA 138). Medical evidence may be of assistance on this issue and, in some cases, may be necessary. Hevi Lift was a case where medical evidence was necessary because the injury occurred during an interval or interlude within an overall period of work when the worker got up from a lounge and had taken only a few steps when he felt extreme pain in his back. In that case, Dr Selby-Brown opined that the worker’s employment had been a substantial contributing fact to his condition, but did not identify any aspect of his work that could have contributed to his condition. That is not the situation in Mr Tran’s case. Both Dr Liew and Dr Ellis have provided properly based medical opinions that the injury was caused by the relevant work activity and the acceptance of either, or both, of the opinions expressed by those doctors would inevitably have led to a finding that work was a substantial contributing factor to the injury.
Salmat submits:
(a)the Arbitrator identified and explained the “significant differences” between Mr Tran’s evidence and the evidence in the statements attached to the Verifact report. Those differences included, the difference in the distance from the paper storage area to the print area, the quantity of the paper run (less than 1,000 as opposed to 25,000), and the production quotas (six boxes a day as opposed to twelve boxes);
(b)Salmat’s lay witnesses were in the position to determine the nature of Mr Tran’s duties and to attest to the environment in which he was working;
(c)the Arbitrator acknowledged that there may well be some S1 nerve root displacement and that Dr Powell had not seen the MRI scan. She felt unable to rely on the medical evidence because it failed to satisfy the test in Makita. The Arbitrator was unable to rely on the medical evidence because that evidence failed to sufficiently explain and reveal the factual and intellectual basis upon which the expert opinions were based. Dr Ellis did not substantiate in his report exactly how Mr Tran’s tasks were considered to have caused his condition;
(d)the Arbitrator correctly understood the law regarding medical evidence;
(e)the fact that the statements attached to the Verifact report had not been forwarded to Mr Tran’s doctors was “considerably more momentous than situations encompassed by Paric”;
(f)based on the Court of Appeal’s decision in South Western Sydney Health Services v Edmonds [2007] NSWCA 16; (2007) 4 DDCR 421 (‘Edmonds’) the Arbitrator was entitled to attach greater weight to the reports and opinions of Dr Powell bearing in mind her view that his history was the correct one, and
(g)the significant factual discrepancies raised by the Verifact report were a determinative consideration for the Arbitrator. The opinions of Dr Liew and Dr Ellis were affected by the absence of the Verifact report and, therefore, were of no assistance in terms of determining whether Mr Tran’s employment was a substantial contributing factor to his injury.
DISCUSSION AND FINDINGS
The Arbitrator’s decision turned on her understanding of the kind of medical evidence needed to support a conclusion that employment is a substantial contributing factor to an injury. That understanding, based on Hevi Lift, was that “the medical needed to support a conclusion that Mr Tran’s employment was a significant [sic, substantial] contributing factor to the injury must be expert opinion the basis for which is explained by the witness expressing it” (Reasons, paragraph 26). She concluded that none of the medical evidence “brought by the Applicant (or for that matter the Respondent) meets that standard.”
The Arbitrator has overstated the effect of the principles in Hevi Lift and their application to section 9A of the 1987 Act. Whether employment is a substantial contributing factor to an injury is a question of fact and is a matter of impression and degree (McMahon v Lagana [2004] NSWCA 164; (2004) 4 DDCR 348) to be decided after a consideration of all the evidence. However, as noted by Acting Deputy President Snell, “It is not purely a medical question” (Awder Pty Ltd t/as Peninsular Nursing Home v Kernick and anor [2006] NSWWCCPD 222 at [31]). In any event, for the reasons set out below, the medical evidence in the present case, when considered with all the other evidence in the case, comfortably supports a finding that Mr Tran sustained an injury arising out of or in the course of his employment and that his employment was a substantial contributing factor to his injury.
In Hevi Lift, the worker suffered extreme pain in his back after getting up from a couch in staff quarters in which he was required to live by his employer and where he was on call 24 hours a day. An MRI revealed a central prolapsed disc at L4/5 requiring surgery. Because the worker was on call at the time of the injury, it was accepted that the injury occurred in the course of his employment, though he was not performing any work duties. The medical evidence included an opinion from Dr Selby-Brown that the worker’s employment had been “a significant contributing factor to his present condition” and from the treating specialist, Dr Khoo, that it was “possible his work could have contributed to his condition”. In stating the “medical issue”, McColl JA (Mason P and Beazley JA agreeing) said (at [21]):
“Dr Selby-Brown did not state any factual basis for his opinion that the respondent’s employment with the appellant had been ‘a significant contributing factor to his present condition’ or identify any aspect of his work that could have contributed to his condition. He did not make any comment regarding the relationship, if any, between the aetiology of the L4/5 disc protrusion he diagnosed and the respondent’s employment. Nowhere in either of his reports did he express the opinion that either of the pleaded mechanisms of injury caused or contributed to the disc rupture, let alone explain the factual or scientific basis upon which such a conclusion might be based. He simply answered the legal test posed by s 9A(1) of the Act in the affirmative.”
The trial judge relied on the medical evidence, his common sense and the sequence of events to find that employment was a substantial contributing factor to the injury. On appeal, it was held that the doctors’ opinions were no more than a “bare ipse dixit” that carried no weight and “In the absence of any identified factual basis for their opinions that the respondent’s work could possibly be (Dr Khoo) or was a substantial contributing factor to his injury the reports were inadmissible and, if admitted, carried no weight” (McColl JA at [80]). Her Honour added (at [90]) that, whilst the trial judge was “entitled to rely upon his common sense evaluation of the sequence of events” (Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538; Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 725 and Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463-464), he “was not entitled to rely upon general knowledge of back impairments derived from his experience in the Compensation Court to infer how, in the absence of any identified factual basis, Dr Selby Brown formed his opinion so as to conclude the Makita test was satisfied” (at [82]).
Her Honour observed (at [91]) that the trial judge was, however:
“Entitled to make the ‘commonsense’ findings concerning matters likely to impose stress upon a back to which I have earlier referred (primary judgment at [41] – [44]). They were both within the ‘realm of common knowledge and experience’ spoken of by Mason J (with whom Barwick CJ and Gibbs J agreed) in Tubemakers of Australia Ltd v Fernandez above, at 724 and the specialised knowledge he had acquired as a judge of the Compensation Court.”
The trial judge was therefore entitled to make some “commonsense” findings as to causation, but his Honour should not have taken that step in the face of the employer’s medical reports which opined that the work had not caused his back injury without explaining why he rejected their opinions (McColl JA at [94]).
The principles discussed in Hevi Lift were considered and applied in Edmonds, an appeal from the Commission. In Edmonds, the Arbitrator and Deputy President erred when they relied on a medical report from Dr Rivett that contained no description of the worker’s duties that might have provided a factual basis for the proposition advanced by the doctor that the worker’s “problems are work related” (per McColl JA at [137]).
The facts in Hevi Lift and Edmonds are in stark contrast to the facts in Mr Tran’s claim. Drs Ly, Ellis and Liew all took histories of the nature of Mr Tran’s duties, namely, that his duties included bending, lifting, and prolonged standing. Salmat’s evidence (set out in the Verifact report) did not dispute that the work involved those activities. Mr Tyree and Mr Blewitt both conceded that the work involved lifting boxes weighing about 12 kilograms and bending to clear jams in the printers. Whilst they questioned the extent of the lifting involved, that is merely a difference of degree rather than one of substance.
The differences between Mr Tran’s evidence and the matters asserted in Salmat’s statements were not “significant” to the determination of the issues in dispute. The difference in the estimate of the distance from the printers to the storage area was of no consequence. It is not alleged that Mr Tran’s injury resulted solely, or even mainly, from having to push a trolley over a certain distance. In any event, the evidence on this issue is unclear. Mr Tyree referred to the stock being obtained from shelves about 20 metres from the printers, but conceded that some stock was obtained from a “back store area” though he did not say how far that area was from the printers. Mr Tran said he got paper from the “storage room” but did not say how far that was from the printers. Dr Ly took a history that the storeroom was “about 100 metres away”. This issue is of limited, if any, relevance to the issues in dispute and is certainly not determinative.
In respect of the size of the print runs, Mr Blewitt’s evidence is that most of Mr Tran’s jobs were less than 1,000, but he did not deny Mr Tran’s assertion that print runs varied from “about 1,000 sheets…up to 15,000 to 25,000 sheets”. I do not see the size of the print run as being decisive. The more relevant statistic is the total output per shift and the evidence on this is vague and imprecise. Mr Tran said it was difficult to estimate how many boxes he had to lift on an average shift. Mr Blewitt said he would be “surprised” if Mr Tran had to handle “more than six full boxes during his shift”. Mr Blewitt did not say, as has been submitted by Salmat on appeal, that Mr Tran handled a maximum of six boxes per shift. Further, Mr Blewitt’s evidence that most of Mr Tran’s jobs were less than 1,000 sheets is at odds with Mr Tyree’s evidence that Mr Tran used one of the printers for “short line productions” and the other for medium to longer runs. Regardless of the exact number of sheets per run, the evidence comfortably establishes, and I find, that Mr Tran’s work required him to lift boxes weighing about 12 kilograms and that in doing that work he had to reach to chest height and bend to knee level.
I also accept that Mr Tran’s work required him to manoeuvre in awkward positions to remove paper jams. Both Mr Tyree and Mr Blewitt conceded that bending was required to remove paper jams though they did not explain exactly how often that was required.
There is no dispute that the work required Mr Tran to be on his feet for prolonged periods. His shifts were 12 hours and, according to Mr Tyree, he only had two breaks in that 12-hour period, one for 15 minutes and one for 30 minutes. Similarly, there is no challenge to Mr Tran’s evidence, which I accept, that after the implementation of the EBA he had to work harder and faster.
The histories recorded by Mr Tran’s medical experts therefore provided a firm factual basis for their opinions. Unlike Dr Rivett in Edmonds, or Dr Selby-Brown and Dr Khoo in Hevi Lift, Drs Ly, Ellis and Liew all expressly identified the aspects of Mr Tran’s employment, namely, the bending, lifting and standing involved in that work, that caused the injury.
I am comfortably satisfied that Mr Tran’s work involved the activities described in the medical reports and, therefore, that the histories provided a “fair climate” for the acceptance of their opinions (Paric at 509-510 and Brady v Commissioner of Police (2003) 25 NSWCCR 58). For this reason, together with the following additional reasons, I accept their evidence.
First, I accept Mr Tran’s evidence that:
(a)production quotas increased with the introduction of the EBA in 2005 and that his work load increased as a result;
(b)his usual duties involved bending, lifting and prolonged standing over a 12 hour shift;
(c)those duties placed a strain on his spine;
(d)his back and leg symptoms commenced at work while performing those duties and deteriorated over time while at work;
(e)it is more likely than not that his slow work in November 2007 was a result of his back and leg symptoms, and
(f)that he had no back symptoms or injuries prior to January 2007.
This evidence, together with the evidence of Drs Ly, Ellis and Liew, makes the acceptance of a connection between the employment and Mr Tran’s back condition logical and compelling.
Second, the MRI and CT scans provide persuasive evidence that Mr Tran suffers from a degenerative disease in the form of lumbar spondylosis with lumbar disc disruption or desiccation that encroaches on the thecal sac. These findings provide a logical and consistent explanation for Mr Tran’s symptoms and there is no persuasive evidence that he sustained an injury to his spine outside his employment that would account for them.
Third, Mr Tran provided consistent histories to all the medical examiners that his duties involved bending, lifting and prolonged standing, and that his back and leg symptoms commenced while performing his work activities in about January 2007. That history provided a sound and logical “factual basis” for the conclusions expressed by Drs Ly, Ellis and Liew that Mr Tran sustained an injury as a result of his work and that his employment was a substantial contributing factor to that injury and, having considered all the evidence, I accept their conclusions.
Fourth, I do not accept Dr Powell’s opinion that Mr Tran’s symptoms can be explained as a “reflection of the natural history of mild lumbar spondylosis”, as it ignores critical pieces of the evidence, namely, that:
(a)Mr Tran had no back symptoms prior to January 2007;
(b)his duties required him to engage in regular bending and lifting;
(c)his symptoms commenced at work while he performed his duties and, initially at least, eased in his four days off between his shifts;
(d)his symptoms deteriorated over time while he performed his usual duties, and
(e)the findings on MRI scan reveal extensive changes consistent with his complaints and disabilities.
Fifth, the absence of a WorkCover certificate from Dr Nguyen is explained by Mr Tran’s evidence, which I accept, that the doctor did not want to get involved in a workers compensation case.
Sixth, based on Dr Nguyen’s evidence in his hand written note of 23 May 2008, which I accept, I do not accept Ms Menouhos’ claim that he said Mr Tran’s condition was not from work. Even if he had made such a statement, it would not, on its own have been conclusive as to the cause of Mr Tran’s condition.
Seventh, I have carefully considered the weight to be attached to the fact that Mr Tran did not report his symptoms to anyone at Salmat until 29 November 2007. Whilst it is unusual that a person would not report back symptoms that developed at work until 11 months after their onset, I accept Mr Tran’s explanation that either he did not know he had to do so until late November 2007 or he did not consider it to be an issue until that time (see Mr Blewitt’s evidence).
Eighth, I found the evidence from Mr Tyree and Mr Blewitt to be vague and unconvincing. It is unusual that Mr Blewitt could recall that Mr Tran had mentioned how his injury happened, but he could not recall the details of what was said. Similarly, Mr Tyree’s evidence was equally vague and unsatisfactory as to what Mr Tran said as to the cause of his injury.
Last, dealing specifically with sub-sections in section 9A(2) of the 1987 Act, I find:
(a)the injury occurred at work while Mr Tran performed his usual duties;
(b)the nature of Mr Tran’s work was physical and required bending and lifting;
(c)the duration of employment was from 1999 until February 2008;
(d)I do not believe it was probable that the injury or a similar injury would have happened anyway at about the same time or at the same stage of Mr Tran’s life, if he had not been employed by Salmat;
(e)I do not believe that Mr Tran’s state of health before his injury has contributed to the injury, and
(f)there is no evidence that Mr Tran’s lifestyle or his activities outside the workplace contributed to his injury.
It follows that the evidence comfortably establishes, on the balance of probabilities, that Mr Tran suffered an injury to his back in the nature of an aggravation of a disease (spondylosis) that has manifested itself in internal disc disruptions or desiccation in his lumbar spine with referred pain and neurological deficit, as a result of the bending, lifting and standing involved in his employment with Salmat from 1999 until he ceased work in February 2008 and that his employment was a substantial contributing factor to that aggravation. Given the nature of the aggravation (disruption of the lumbar discs with referred pain) and Mr Tran’s significant continuing symptoms, I am also satisfied that the effect of the aggravation is continuing. The deemed date of injury is the date on which Mr Tran became incapacitated for work and entitled to weekly compensation (P & O Berkeley Challenge Pty Ltd in the interest of HIH Winterthur Workers Compensation (NSW) Pty Ltd v Alfonzoand others (2000) 49 NSWLR 481). That was either on 1 December 2007 or on the day in February 2008 when he stopped work, and that date will need to be determined at the re-determination that must now take place.
OTHER MATTERS
At the teleconference on 8 September 2008, the Arbitrator determined, without objection from either party, that it was appropriate to determine this matter “on the papers” without the need for a formal hearing and, to that end, she directed that written submissions be filed. Salmat filed its submissions on 16 September 2008 and Mr Tran filed his on 19 September 2008. While Salmat did not “make any concessions” in relation to the “injury” dispute, it did not make any submissions on the issue of injury in general or on the authorities of Hevi Lift and Makita in particular, but only submitted on the wage records and sections 40 and 38 of the 1987 Act. Mr Tran’s submissions did not deal with the medical histories, or the injury dispute, but focused only on sections 40 and 38. Whether the parties chose to restrict their submissions in this way or were directed to do so is unclear.
Nevertheless, given this background, if the medical histories troubled the Arbitrator to such an extent that she considered them to be determinative, she had an obligation to seek further submissions from the parties on that issue. The failure to do so meant that the Arbitrator determined the case on issues that were not argued before her. Whilst an arbitrator is not restricted by the arguments presented by the parties, if an arbitrator “contemplates determining the case on a different basis he or she must inform the parties” of that prospect so that they have an opportunity to make appropriate submissions and a “failure so to inform the parties will ordinarily result in a denial of procedural fairness” (see Ipp JA (Mason P agreeing) at [78] and [79] in Seltsam Pty Limited v Ghaleb [2005] NSWCA 208).
Whilst I do not know what submissions, if any, were made at the teleconference, the parties’ written submissions did not deal with the issues the Arbitrator ultimately determined to be decisive. Arguably, the course adopted by the Arbitrator denied the parties procedural fairness, as the case was determined on a basis upon which they did not have an opportunity to address.
As Mr Tran has not argued this issue on appeal, I have not based my decision on it, but merely highlight the importance of giving parties a reasonable opportunity to make submissions on all matters of importance to the resolution of the issues in dispute.
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 am of the view, for the reasons given in this decision, that the Arbitrator reached an erroneous conclusion when she made an award for Salmat and that Mr Tran is entitled to an award in his favour. As I have not had the benefit of any submissions on the quantification of any award in favour of Mr Tran and as his solicitor has submitted that the matter should be remitted to a different Arbitrator for that purpose, that is the course I propose to adopt.
DECISION
The Arbitrator’s determination of 1 October 2008 is revoked and the matter is remitted to another Arbitrator for determination of the deemed date of injury and calculation of the Appellant Worker’s entitlement to compensation.
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal and of the first arbitration.
Bill Roche
Deputy President
23 December 2008
I, MARIE JOHNS, 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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